Cole v. Rhor

10 Ky. Op. 631, 1 Ky. L. Rptr. 62, 1880 Ky. LEXIS 274

• Court: Court of Appeals of Kentucky
• Decided: June 1, 1880
• Status: Published

Opinion

Opinion by

Judge Pryor:

In this case, while the proof may not be altogether satisfactory as to the intention of the appellant when leaving his residence, still, as the evidence is conflicting as to his purpose to abandon it, the chancellor acted properly in adjudging that he was entitled to a homestead. The officer had no right to sell under the execution without setting apart his homestead, and the sale passed no interest in remainder to the purchaser. He certainly takes the property subject to the homestead, and as to that or to the extent of its value he acquired no title whatever. The proof showing that the property was worth less than $1,000, no right was acquired by the appellee. There is no remainder in a homestead that can be sold while the debtor is living.

The judgment, therefore, determining that the purchaser held the property in remainder, is reversed and cause remanded with directions' to set aside the sale. If the property can be divided the sheriff or commissioner should allot to the appellant his homestead and sell the balance, or, if indivisible, sell the whole lot and pay to the appellant $1,000.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.