Cooper v. Arnett , 95 Ky. 603 ( 1894 )

JUDGE HAZELRIGG

delivered the opinion oe the court.

Appellee Arnett was the owner of a farm in Henderson Comity on which, in February, 1890, and prior thereto, he and his family resided, and in which he was entitled to a homestead. In April, 1890, he sold this farm *or the sum of four thousand dollars, and at once invested two thousand four hundred dollars of the money in the purchase of two hundred and forty-four acres of land in Hopkins County. He then sold to appellee Sutton one hundred and twenty-fire acres of the Hopkins Count}’ farm for one thousand four hundred dollars, retaining and residing on the balance — some one hundred and nineteen acres — with his family, and the value of which is estimated to be not exceeding one thousand dollars.

In February, 1890, Arnett became the surety of one Royster to the latter’s creditors, and in April, 1891, the appellant, Cooper, as agent for such creditors, obtained,' in the Henderson Circuit Court, a judgment against Royster and Arnett for some five hundred and fifteen dollars, and in July thereafter had an execution to issue to Hopkins County, where it was levied on the lands owned by the appellee, Arnett, and his vendee, Sutton. At a sale under the execution, appellant bought the tract 'for his debt and brought this action for an enforcement of his alleged lien.

It appears that Sutton did not pay some four hundred dollars of the purchase price of the one hundred and twenty-five acres until after the levy of the appellant’s execution in July, and for that reason his land was sought to be subjected to sale. Of this contention it is only necessary to say that the debtor had the right to pay his creditor, unless prevented by attachment or'other appropriate means. Sutton bought the land at a fair price, got a title bond therefor and paid all the purchase money therefor except four hundred dollars before the levy of the execution. That he did not get a deed therefor until after the levy and pay the balance of the purchase price does not result in placing his land in lien under the execution. Arnett was not then the owner of it, and the mere levy does not affect Sutton’s land or Sutton to any extent or for any purpose.

As to Arnett, it is evident that as he had a homestead in the Henderson County farm, he had one in the land bought in Hopkins County with the proceeds of its sale. It is said that the answer does not disclose that he sold the first farm with the intention of reinvesting in a homestead, and the purchase of the latter must be regarded as an original purchase of a homestead, and therefore the debt of the appellant was created prior to the purchase. We think this contention demands too strict, a construction of the Homestead Act. Before any effort was made to reach the proceeds of the sale of the lands in Henderson County, or while such proceeds were in the hands of the debtor, at which time the inquiry might be material as to the intention with which the proceeds were held, the debtor does in fact invest it in a homestead, and this, we think, was not an original obtention or purchase of a homestead, or one obtained or purchased after the creation of the debt set up in this case.

But may a debtor, owning land worth four thousand dollars, sell it, invest one thousand dollars in other land, and then with three thousand dollars in his pocket set up his exemption ? The state of case presented -would differ only slightly from a case where the owner sold off three thousand dollars worth of his land, retaining o*ne thousand dollars worth as a homestead, aS he could clearly do.

But however beneficial the answer to this question might be to the appellant, it is not presented in this case.

When Arnett sold his Henderson County farm, he was largely in debt, and the proof discloses that he proceeded to discharge his indebtedness out of the proceeds of the sale of his farm, and even with the Sutton purchase money was unable to pay all he owed, and borrowed other money for that purpose. This he had the right to do.

If he omitted the debts he OAved as surety, the remedy of the creditor Avas by a different proceeding from this.

There is another reason why this question is not presented here. The answer of Arnett brings him within the protection of the homestead statute, and to deprive him of the benefit of the act, the appellant must plead the facts necessary for that purpose. This he does not do.

The levy of the execution and the sale of the lands of the appellee gave no lien to, and conferred no title on, the purchaser, and the judgment dismissing his petition is affirmed.