Stephens v. Montgomery

Blandpord, Justice.

[_A.fi.fa. in favor of Stephens, governor, against Mrs. N. E. Montgomery was levied on certain land, and the defendant interposed a claim thereto , alleging that the land did not belong to her individually, but was property which had been set apart to her husband as a homestead, and she was merely a beneficiary. The case was submitted to the presiding judge on an agreed statement of facts, which was, in brief, as follows: The husband of the claimant had the property levied on set apart to him, as the head of a family, as a homestead, under the constitution of 1868. He died, leaving his wife, the claimant, and eight children in possession. All of the children have become of age and married, except one, who is a boy of about twenty years of age, and who, with the claimant, is in possession of the land. The claimant is about sixty-five years of age. The fi. fa. issued upon a judgment founded upon a contract made by the defendant after the adoption of the constitution of 1877.

The presiding judge held the property not subject, and' the plaintiff in fi.fa. excepted.]