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MASON COLUMBIA FINANCE AND TRUST COMPANY.

[99 KENTUCKY, 117.]

HOMESTEAD ON WHICH THE CLAIMANT HAS NEVER RESIDED.-If a husband and wife own adjacent tracts of land, which are cultivated as one farm, he may claim and hold his tract as a homestead, though the house in which he and his family reside is not upon his land, but upon hers.

C. C. Turner, A. T. Wood, and H. M. Woodford, for the appellant.

Stone & Sudduth, for the appellees.

118 PRYOR, C. J. The sole question to be determined on this appeal is, whether or not the appellant, John Mason, is entitled to a homestead in certain real estate conveyed by him to A. A. Hazlerigg for the benefit of creditors.

The appellant, Mason, and his wife owned jointly a tract of three hundred and twelve acres of land. The wife owned a part of the tract laid off and designated by metes and bounds in her own right, and the land owned by the husband adjoined the land of the wife, the entire body of land owned by husband and wife containing three hundred and twelve acres, and used and cultivated as one farm. The house in which they lived was on twentyfive acres of the land to which the wife had the fee, and the husband's land bordering upon it. The insolvency of the husband caused an assignment for creditors, and in the distribution of assets, his land having been sold, he was denied the right of homestead, or its value, and has appealed.

The case of Vanmeter v. Vanmeter, 12 Ky. Law Rep. 214, is relied on as sustaining the judgment below. In that case the husband assigned, having a right of curtesy in a tract of land of his wife, upon which he lived, worth more than one thousand dollars, and this court held he was not entitled to a homestead in both tracts. The land on which he lived or his life estate in it being worth one thousand dollars, and living upon it, he must take that and not his homestead in the tract to which he had the fee. It is insisted that to enable the appellant to assert his right he must have actually lived on the land to which he had the 119 fee, and this is the general doctrine on the subject, and often controls the decision of such questions. In this case, the appellant, in contemplation of the statute looking to both the letter and spirit of its provisions, was living on the land to which this right is asBerted. It was all one tract, so regarded by the parties, used, cultivated, and claimed as one tract, and because the house is

outside of the boundary of the land to which the husband had the fee it is insisted no right of homestead exists.

The interpretation given the statute by this court is, "that it depends [this right] upon the present and actual purpose and intention of the debtor to use and enjoy the property sought to be exempted as a home for himself and family, and that the right' does not exist where the debtor and his family are permanently located elsewhere."

We think that looking to the purposes contemplated by the statute, that of securing to the debtor this exemption for himself and family, it cannot well be maintained that this residence on the one tract of land must be regarded as a permanent location, claimed for no other reason than that the home happened to be located on the land owned in fee by the wife.

In the case of Lowell v. Shannon, 60 Iowa, 713, it was held that where the husband and wife own contiguous tracts of land, and occupy the two tracts as a homestead, with the dwelling ou the land of the wife, the wife was entitled to a homestead in the adjoining land of the husband. That the husband occupied this land sold for creditors as a homestead is, we think, unquestionable.

Judgment reversed, with directions to award the homestead in money, as the land has been sold, and direct its payment to the appellant.

Judge Hazelrigg not sitting.

HOMESTEAD-IMPORTANCE OF ACTUAL OCCUPANCY.-It is generally held that there must be both possession and occupancy of the premises in order to stamp them with the character of a homestead, but upon this question there is a decided conflict of authority: Notes to Mann v. Corrington, 57 Am. St. Rep. 261; Cameron v. Gebbard, 34 Am. St. Rep. 838; Turner v. Turner, 54 Am. St. Rep. 114; Woodbury v. Warren, 48 Am. St. Rep. 817.

BROOKS-WATERFIELD COMPANY V. FRISBIE.

[99 KENTUCKY, 125.]

HUSBAND AND WIFE, HIS CREDITORS' RIGHT TO HIS EARNINGS AND SERVICES.-If a married woman has property and a business of her own to which her husband contributes his time and labor, thereby improving it and otherwise increasing its productiveness or value, a court of equity will, at the instance of his creditors, inquire and determine what part of the property has thereby become equitably his, and will order such part, exclusive of the homestead and other exemptions, to be sold and applied to the payment of their claims, or will direct such property to be placed in the hands of a receiver to be rented, and the husband's share of the proceeds applied to the payment of his debts.

T. T. Forman and W. S. Cason, for the appellant.

J. T. Simon, J. Q. Ward, and Blanton & Berry, for the appellee.

127 GUFFY, J. It appears from the record in this case that prior to 1885 the appellee, H. D. Frisbie, was a prosperous business man, in apparent good financial condition, and that, in addition to his individual business, he was in partnership with Lake, but that some disease seized a large number of cattle belonging to him, or the firm of Lake & Frisbie, and perhaps some other financial reverses befell him, rendering him, as it seems, unable to pay his debts, and that he made an assignment in 1885, but the firm did not assign.

It also appears that said Frisbie owed about $21,000, and that his assets were about $6,000. About $15,000 of the indebtedness was due to appellee's father in law, Judge Day, the other principal creditor being the appellant.

After paying the cost of settling the estate assigned, and also paying the appellee, Mrs. Frisbie, $1,000 for her contingent right of dower in real estate assigned, the estate only paid 18.42 cents to the dollar on the ordinary claims.

Appellant's claim was a debt due from the firm of Frisbie & Lake, and, in 1888, it obtained judgment against H. D. Frisbie, surviving partner of said firm, as well as individually, for the sum of $4,872, with interest from the 22d of 128 April, 1886, upon which executions were issued and returned no property found, but it also appears that $988.62 was paid on the judgment by the master commissioner, in case of Lake v. Lake, September 8, 1888; also paid by the master commissioner, as it seems, out of the assets assigned as aforesaid, $1,036.52, January 5, 1889.

In 1887, the appellee, Mrs. Frisbie, was by judgment of the court empowered to do business as a feme sole. On the 18th of November, 1892, the appellant instituted this action in the Harrison circuit court, seeking to subject certain property conveyed to Mrs. Frisbie to the payment of its said judgment.

It is alleged in the petition that the appellee, Mrs. Frisbie, has the legal title to certain parcels of valuable real estate, conveyed under the circumstances set out, viz., one parcel or lot in Cynthiana, Kentucky, on east side of Walnut street, between Pike and Pleasant, conveyed to her by W. H. Hutman and wife, on the 23d of March, 1880, which was made to her at the request of her husband, who, out of his own means, paid therefor $1,100 cash in hand.

It is also charged that, after the creation of the debt sued on,

H. D. Frisbie, with the fraudulent intent and purpose to cheat, hinder, and delay plaintiff in the collection of its debt, and of which purpose appellee, Mrs. Frisbie, had knowledge, did erect on said grounds two double brick houses—that is, four dwellingsone of which he and his family occupy; another is held and occupied by their tenant, defendant T. B. Smith; another by one Givens, and the fourth by defendant, Moses Levy, at a rental value of about $25 per month each; that said improvements were erected by H. D. Frisbie out of his own means and property as an investment, and not for use of his family, except as to one set of the four dwellings, and cost about $11,000, and are valuable and lasting.

129

2. That by deed of the 28th of January, 1887, Lewis Day's administrator conveyed to Mrs. Frisbie a lot of ground on the south side of Pike street, fronting on said street, the consideration being $1,560, of which sum H. D. Frisbie paid $527 for the same purpose as before charged, and that Mrs. Frisbie knew of the same and participated in the fraud; that the lot is improved, and rents for about $30 to defendant, Mussellman.

3. That on February 17, 1892, T. W. Hedges conveyed to Mrs. Frisbie, in consideration of $1,725, a certain house and lot on the east side of Walnut street, $800 cash paid, the residue on time, which notes were assigned to the defendant national bank; that H. D. Frisbie, out of his own means, erected thereon a large three-story brick storehouse, glass and iron front, at a cost of not less than $8,000. The same charges of fraud are made as to the purchasers and improvements.

4. That upon a lot allotted to Mrs. Frisbie, in settlement of the estate of Lewis Day, H. D. Frisbie, with like fraudulent purpose, erected, out of his own means and as an investment, on said lot a frame warehouse and storehouse, at a cost of about $1,000, the same being valuable and lasting, and increasing the rental value from nothing to about $30 per month.

The appellant prays that the various parcels of property be put into the hands of a receiver to be rented out, and the rents paid into court, to be apportioned between the plaintiff and Mrs. Frisbie in proportion to the amounts paid by her and that paid by H. D. Frisbie, including the cost of the improvements, except that he asks a sale of the 130 third tract named, and asks for all proper and general relief.

The answer of appellees may be considered a traverse of all the allegations of the petition, and, in effect, alleges that all the purchases and payments were made out of and with the means

of Mrs. Frisbie. Appellant in its reply traversed the material averments of the answer. The court upon final hearing dismissed plaintiff's 'petition, and from that judgment this appeal is prosecuted.

It appears that H. D. Frisbie in some way paid or settled all debts against him except appellant's claim. The testimony conduces to show that Mrs. Frisbie constituted her husband her attorney in fact, to do business for her, and that he engaged extensively and very successfully in business.

He engaged in Cincinnati in business under the sign of King's Royal Germature, and made considerable money, his family then living in Cynthiana, Kentucky, and finally sold out the business for $12,500. H. D. Frisbie also conducted a furniture, undertaking, and wallpaper business, under the name of Frisbie Furniture and Wall Paper Co. The name of H. D. Frisbie was for a time on the front of the awning in front of the door, but it was taken down, H. D. Frisbie saying it was put there by mistake.

The proof also conduces to show the rental values to be something like the sums alleged in the petition, and that H. D. Frisbie conducted a paying and profitable business, and was the real manager, Mrs. Frisbie rarely, if ever, paying any attention to the business. He also speculated some in South Dakota, and perhaps in Illinois, some or all being profitable.

Mrs. Frisbie does not testify in the case, but the husband 131 does, and from his notion and construction of Mrs. Frisbie's property, including what he claims to have given her before his failure, shows that she had considerable property before she was authorized to trade as a feme sole.

The proof conduces to show that all the property claimed by Mrs. Frisbie was, in May, 1893, worth perhaps between $35,000 and $40,000, with perhaps an indebtedness due from her of $10,000 or $11,000.

There can be no doubt as to the fact that Mrs. Frisbie received several thousand dollars from her parents, and that about $1,000 was by her father given to H. D. Frisbie, but which it seems he afterward undertook to restore to his wife.

We do not deem it necessary to discuss the allegations of fraud made in the petition. It seems clear to us that the increase or accumulation of property and means is chiefly due to the labor and skill and energy of H. D. Frisbie.

In Moran v. Moran, 12 Bush, 303, it is substantially said that all an insolvent husband may be able to earn beyond the exemptions should go to his creditors, yet appellee's contention in

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