Case 44 — Action by Lydia Roark against J. J. C. Bach and Other: Involving Title to a Homestead.

Oct. 16.

#### Roark v. Bach &c.

APPEAL 'FROM PERRY CHÍCUT COURT.

JUDGMENT FOR DEFENDANTS AND PLAINTIFF APPEALS.

REVERSED.

Homestead — Exemptions—Donation—Right of Owner to Convey to Wife.

Held: 1. An illegitimate son on the death raf his .putative father received froto decedent’s widow an'd heirs a parcel of land Belonging to the estate. 'The land was worth lessi than $1,000. The son lived on it with his family. Held, that the land' was a homestead, exempt from the liability of a judgment rendered against him before he acquired it,, he not being 'a purchaser within the meaning of the homestead law making land purchased by a debtor after the creation of the debt liable therefor.

2. A debtor entitled to land as a homestead has the right as 'against his creditor to give it or its proceeds to his wife.

BAILEY P. WOOTTON and JESSE MORGAN, for appellant.

The evidence in this record shows that L. C. Roark came in possession of a tract of land in the division of hisi reputed father’s estate. Whether he was a legitimate child] on not is not material, as he acquired it by reason of his claim.' así an heir. He traded this piece of land to Hurst for the land in controversy and conveyed the Hurst land to h'is wife, Lydia Roark. He resided on it with his .family, claiming and occupying it as a homestead. It was not worth .over $500. Prior to his acquiring the original tract, he owed one Williams a debt, on which he was sued, judgment obtained, and an execution levied on the Hurst land, 'and it was sold andl .purchased by Bach.

Our contention' is that the land was not subject to sale, but was exempt to tbe plaintiff, Lydia Roark, and her- husband as a homestead.

And being exempt, it was not a fraud in the husband to convey it to his wife, as one hasa right to do as he pJeasss with: exempt property so far as his creditors are concerned.

*458AUTHORITIES CITED.

Ky. Stats., secs. 1656 and 1659; 91 Ky., 639; 83 Ky., 78; 87 Ky., 511: Morehead v. Morehead, 25 S. W., 750; 42 S. W., 9X;' Stults v. .Sale, 92 Ky., 5; 78 Ky., 630; 92 Ky., 164; Jewel y. Clark, 78 Ky., 398; 1. S'. W., 401; Wing v. Hayden, 10 Bush, 276; Thompson v. Hufcner’s Exr., &e., 11 Bush, 353; Brooks, ■fee., *v.*Collins, 11 Bush, 622; SO Ky., 152; 4 Bush, 51; 1 Bush, 110; 6 R., 458; 7 Bush, 565.

JOHN E. PATRICK and KELLY KASH, foe appellees.

The record shows that L. C. Roark, the husband of .appellant, .was am illegitimate son .of J. B. Roark. When it came to partitioning his estate among his heirs this son asserted| that he had been adopted as a legal heir, and after a -futilel effort tot establish this fact the widow and children oif J. B. Roark had. laid off to him a tract o'f land out o.f the home farm. .Before he acquired this land, he owed a debt to- one Wiilliams, who died, and 'the debt came into the hands oif 'Hagins, his .administrator. Roark. exchanged a portion .of this land to1 Hurst for the lot in controversy and had the lot coinveyed to¡ his* wife, Lydia Roark, biit the deed was never recorded.

Hagins, administrator of Williams, sued on the note, .obtained judgment, siue-d out an execution, had it levied on the lot and bid it in for himself upon the idea 'that ‘Roark had taken the title to himself.

After this Hagins transferred his bi-d -to appellees, who paid him its reasonable value, and made improvements .on the lot; and this suit was brought to evict them.

Appellant and her husband attempt to1 avoid the force of 'their fraud by showing that appellee, Bach, 'was interested, in the exchange of the property and assisted in the negotiations, wrote the deed, and knew the lot was conveyed to appellant. But in this they fail.

We insist that the record is conclusive of the fact that Bach, in good faith, believed that the title had been taken to L. C. Roark. It is at least conclusive that his property paid .for it.

It is shown (1) that Roark did not inherit the land 'he exchanged for this lot; (2j that he created the debt for which this lot was sold before he acquired the land that was exchanged for it; (3) that he retained a homestead in the lands he acquired; that is, that he did not exchange the whole tract, hut kept that part where he resided; (4) that the conveyance to his wife was voluntary.

We insist, *first,*that he was not entitled to a homestead in this *459land as against a pre-existing debt; *second,*that appellees having ■parted with their money upon the faith that he had taken title* to this land himself, and they having failed to record the 'deed showing title in appellant, she is estoipped from asserting title to it.

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 *461homestead, 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.