Thrasher v. Bettis

McCay, Judge.

In our judgement the return of the appraisers, the approval of the ordinary, and the passing by him of the orders, was a setting apart of his homestead to the applicant, and an appropriation of the remainder of the debtor’s land to the creditors. The house and lot were valued at $2,800 00, this not only gave him his homestead, but allowed for the lien, and left still an interest subject to sale, of $300 00. Had the debtor been dissatisfied with the return and orders of the ordinary, he had his remedy. He took the house and lot as his homéstead in view of, and with the understanding that it was worth $2,800 00, and in our judgment, he is bound by that judgment. He applied for, and got his homestead, in that particular property. The only reason why it was allowed to be be sold, was that by the return it ivas treated as worth more than $2,000 00 besides the lien. It is merely accidental that it has been sold before the proceeds arising from the sale of the other real estate was distributed. The same judgment which gave him his homestead, devoted the other to the creditors, at least, they were had at the same time; they or he might have appealed. Neither of them did. We think it is the. clear intent of the law, that the return of the appraisers and the order of the ordinary, in view of the fact that the property is adj udged to be worth more than $2,000 00, recognizing the right of judgments to sell it and protecting the homestead interest when sold, is the laying off of the homestead, and that it is too late to revise that judgment. If this were allowed the matter would be always open, since, as we have said, it is merely accidental that the sale has occurred so soon. It might be ten years before the sale; if might be for new debts.

Judgment reversed.