Roark v. Bach

Opinion of the court by JUDGE PAYNTER Affirming. L. C. Roark, husband of appellant, Lydia Roark, was an illegitimate son of J. B. Roark, and upon the death of the latter, and in an action to settle the estate or partition the land, he claimed that he had been, by proper orders of court, adopted as an heir at law of his putative father. This was denied, and the evidence tends to show that the claim had no foundation in fact. However, the widow and children agreed to and did allot him out of the home farm a parcel of land of less value than $1,000, upon which he lived with his family and claimed it as his homestead. Before he acquired the land he became indebted to one Williams, whose personal representative reduced the claim to judgment, and to pay which the lot in Hazard, Perry county, was sold under execution, and by virtue of which sale appellees claim it. It was sold as the property of L. G. Roark. While he was living on his homestead ..with his family, he sold or traded part of it to one Hurst, and as part consideration received the lot in controversy. In the exchange of deeds the lot was conveyed to his wife, the appellant, but she did not have her deed recorded before the sale under the execution. The question before us is, did the wife acquire title to the lot? Under the statutes regulating homestead rights, the homestead of L. 0. Roark would have been subject to the payment of the debt if he had purchased it after the debt was created. This court, by numerous decisions, has so interpreted the statute. The evident intention of the. General Assembly was to prevent [460] •the debtor from converting money or property which eould have been subjected to the payment of a debt into a homestead exempt therefrom. It has been held that when a debtor has acquired by descent or devise property after the creation of a debt, he is entitled to a homestead in it as against the debt. Meador v. Meador, 88 Ky., 217, 10 R., 783, 10 S. W., 651; Jewell v. Clark, 78 Ky., 398; Pendergest v. Heekin, 94 Ky., 384, 15 R., 180, 22 S. W., 605. To so-hold is not violative of the letter or spirit of the statute» In such case the creditor has not been prejudiced, because the .debtor has not converted any debt paying part of his estate into exempt property. In this case the debtor did not purchase the land. ’ It was given to him by the widow- and children of the deceased in consideration that he was the latter’s illegimate son. It was not purchased in the meaning of the homestead law; no part of the debtor’s, estate was converted into it; the creditor was not prejudiced because it was given to him. It would be an exceedingly narrow view to hold that the debtor acquired the land by purchase in contemplation of the statute. Homestead laws should be liberally construed, so as to carry out the purpose of their. enactment. We conclude that the debtor was entitled to the land as' a homestead when he sold or traded part of it to Hurst. This being true, did he have the right to give it or its proceeds to his wife? We are of the opinion that he had that right. The creditor could not seize and sell it to pay his debt. He could not restrain or interfere with the alienation' or sale of it. He had the right to sell it, with or without consideration, regardless of the claim of creditors. Tong, etc., v. Eifort, etc., 80 Ky., 152, 3 R., 647. This court has held that the owner of a homestead can dispose of it by will. It necessarily follows that the husband had the right to give the [461] homestead, to bis wife. If he could give her that, then he could likewise allow her to receive the proceeds. Such act was not prejudicial to the rights of his' creditors. The judgment is reversed for proceedings, consistent with this opinion.