The following lawsuit between Charles Carroll and William Dawson made its way to the Kentucky Court of Appeals which rendered a verdict in favor of Carroll. The transcription below is taken from The Southwestern Reporter, Volume 46, June 27 - August 22, 1898, St. Paul: West Publishing Company, 1898, pages 224-5.
While interesting on its own merits, the case provides an insight into the lives of Charles and Ida Carroll.
CARROLL et ux. v. DAWSON et al. (Court of Appeals of Kentucky. May 28, 1898.)
[Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerlhy state reporter.]
Homestead — Fraudulent Conveyance — Abandonment.
1. A conveyance by a debtor of his exempt homestead is not fraudulent as to creditors.
2. Where a debtor left Kentucky, expressing his intention to locate at Perry, Oklahoma, if the outlook was favorable, and five days thereafter, being then in Perry, executed to his wife a deed conveying to her his homestead, of which he had left her and his children in possession, the deed is valid as to creditors, as there had not then been any abandonment of the homestead, though the debtor did about two months thereafter begin the practice of law in Perry, and afterwards wrote for his family to come, which they did.
Appeal from circuit court, Bullitt county.
"To be officially reported."
Action by William Dawson and others against Charles Carroll and wife to set aside a deed. Judgment for plaintiffs, and defendants appeal. Reversed.
J. F. Combs and Chas. Carroll, for appellants.
Nat. W. Halstead, for appellees.
WHITE, J. The appellees, being creditors of appellant Charles Carroll, brought this action in equity to have a deed to the wife, made March 22, 1894, declared void as to them, alleging that it was voluntary and fraudulent as to creditors. The answer admits that the deed was voluntary to the wife, but pleads that it was not fraudulent, for the reason that the property conveyed was the homestead of appellant at the date of the deed. The reply denied that the property was at the time of the deed a homestead of appellant. This is the sole question presented, for it is well settled that if, at the date of the deed, the property was the homestead of appellant, he had a perfect right to deed It to his wife.
Appellees admit that the property was up to March 17, 1894, the homestead of appellant, but that before the deed, March 22, 1894, he abandoned the same, and was at the date of the deed a resident citizen of the territory of Oklahoma. The circuit court adjudged that the property was not the homestead of appellant, and that, therefore, the deed was fraudulent and void, being admittedly voluntary.
The facts as proven are that appllant purchased the house and lot, for such the property was, in June, 1890, and that very shortly thereafter he moved into it, and occupied the same as a homestead on up till March, 1894. In March appellant Charles Carroll expressed his intention to leave Shepherdsville, and go West or Northwest, and there follow his profession, the law. He disposed of his library, tried to sell his business, but failed, and made arrangements to have it attended to for a part of the fees. He also expressed his intention of locating at Perry, Okl., if the outlook was favorable. On March 17, 1894, he left home, leaving his wife and children occupying the premises, and went direct to Perry, Okl. On March 22, 1894, five days after leaving, the deed was made to the wife, appellant Charles Carroll being then in Perry; however, reciting in the deed that he is temporarily absent from Kentucky, and may so remain for some time, etc. On April 13, 1894, an execution, which had been assigned to appellees as sureties, was levied on the house and lot in question by the sheriff; but the levy was released by the sheriff, May 1st, because of a failure of appellees to execute bond of indemnity, and then the execution was returned, "No property found." This action was brought May 2, 1894, seeking to have the deed declared void. During all this time, since the purchase, in 1890, up till after the institution of this action, and probably till in August, 1894, the wife, Ida Carroll, occupied the house and lot as a homestead. The property is worth less than $1,000, and appellants had no other home. In August. 1894, Ida Carroll moved with her children from Kentucky to Perry, Okl., and she and her husband remained there till the spring of 1895.
Charles Carroll, in November. 1894, gave his deposition in this case, and therein he states he is a resident of Perry, Okl., and is engaged in practicing law there, and had been there since March, 1894. He says he went there to see how he liked the place, and intended, if it suited him, to remove there and locate; that in May, 1894, he concluded he could do well, and began the practice of law, and wrote his family to come, which they did. While there is some question as to the intention of Charles Carroll when he left Kentucky, March 17, 1894, there is none that his wife and family continued to occupy the home place till as late as August of that year, although he was In Perry, Okl. Did this constitute an abandonment of the homestead as of date of March 22, 1894, the date of the deed?
This phase of the question of abandonment of a homestead seems never to have been adjudicated by this court. In the case of Bank v. Kennedy, 58 Iowa, 454, 12 N. W. 479, a case very similar in facts to the case at bar, one Faust, a lawyer, residing in Iowa, in May, 1879, conceived the idea of removing permanently to the territory of Dakota, and went there, leaviug his family residing on the homestead in Iowa, and they remained there till May, 1880, when the homestead was conveyed. The savings bank sought to subject the homestead to their judgment debt, which the court refused to do. saying: "For the purposes of this opinion, it may be conceded that Faust became a resident of Dakota in May, 1879. The question then is, did such fact constitute an abandonment of his Iowa homestead? In our opinion, it did not. The homestead exemption is for the benefit of the family. So long as the family desires to occupy it, we think that the law designs that it shall be exempt. It may often happen that a little time must intervene after the head of a family has gone to another state with the design of removing there and before it is possible for him to establish a new home, it would be a harsh rule to hold that the family cannot enjoy the exemption of their homestead during such time. The spirit of the statute is indicated by the provision that a conveyance of the homestead by the husband without the wife's signature is void. It seems clear that his mere removal to another state, with the design of returning only temporarily, should not destroy the exemption, and open the way to an alienation." In the case of Hemphill v. Haas, 88 Ky. 492, 11 S. W. 510, this court, by Chief Justice Lewis, said: "The homestead exemption was manifestly intended by the legislature as well for the protection and benefit of the wife and infant children as of the husband, and she has an interest or estate in the homestead that not only survives to her after his death, but that cannot be mortgaged, released, or waived by him without her consent expressed in the solemn form required to devest her of the absolute title." The proof in this case does not show that on March 22, 1804, appellant had permanently taken or acquired a residence in Oklahoma, and we are of opinion that the homestead in Kentucky was not abandoned when the deed was made. It is a well-settled doctrine that when a domicile has been acquired, it is not lost until a new one is actually gained facto et animo. The family actually resided on this homestead when the deed was made, and the husband, while having expressed his intention to leave Kentucky, is not shown to have, in truth and fact, gained a domicile in Oklahoma. The homestead not having been abandoned, the deed to the wife was not fraudulent. For the errors indicated the judgment is reversed, and cause remanded, with directions to dismiss the petition of appellees absolutely.
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