Richards v. Stewart

GANTT, P. J. This is an appeal from the Pike circuit court. The action is ejectment in statutory form. The issues involved in this case and the evidence adduced are exactly the same as those in Evelyn Sharp, to the use of Richards, appellant, v. Anna B. Stewart et al., respondents, heard and decided at this term in an opinion handed down by Judge Pox. [Ante, p. 518 of this volume.] . The circuit court in this, as in that case, set aside the sheriff’s sale upon which plaintiff seeks to maintain this action. The controlling question involved is whether Mrs. Stewart had and has a homestead exempt from the levy on plaintiff’s debt. As all the facts are fully set forth in Sharp, to the use of Richards, v. Stewart et al., reference can be had to them. For the reasons given by Pox, J., in the decision in the last-mentioned companion case with this, we hold that the title to the homestead in question vested in Mrs. Stewart in 1885 by virtue of a devise from her father; that the debt, to which it is sought to subject [534] this land, accrued in 1893; that the subsequent partition in 1898 did not create any title in her, but merely segregated and set off to her by specific boundaries, the lands she had received by devise from her father; that she and her husband and children had been in the actual occupancy of the lands for nearly two years prior to the levy and sale under which plaintiff claims; that she was accordingly entitled to a homestead therein as against the plaintiff in said execution and the purchaser at said sale, and the judgment of the circuit court was right and mpst be and is affirmed. Fox, J., concurs; Burgess, J., absent.