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Burrow v. Maxon.

before the creation of the debt, made him a parol gift of the land, and that he had then settled on it; that after his father's death his sisters by way of compromise had made him a conveyance of the land. The deed from his sisters was filed by him with his answer. It was executed on October 3, 1905, which was before the execution was levied on the land, and after the plaintiff's debt was created. The deed shows on its face that M. Maxon left a will, which was probated in the county court; that O. W. Maxon took an appeal from the order of the county court admitting the will to probate; and while the appeal was pending, and in compromise of the litigation, his sisters, who were the other children of M. Maxon, made him a deed to this tract of land and paid him $1,000, in consideration of which he dismissed the suit and paid the cost. The statute provides that the exemption shall not apply "if the debt or liability existed prior to the purchase of the land." Ky. St. 1903, section 1702. The question then arises: Did O. W. Maxon purchase this land after the creation of the debt to Burrow?

In Jewell v. Clarke's Ex'r, 78 Ky. 398, the court, construing the statute said: "The object of this provision was to prevent debtors from purchasing homesteads after creating debts or liabilities, and then claiming the exemption against such debts. The means with which a homestead was purchased might be the very means to which the creditor looked for payment, and gave the debtor the credit which enabled him to create the debt; and it would be unjust to the creditor to allow the debtor, by thus investing in a homestead, the means on the faith of which he obtained credit to defeat the collection of the debt. But, when the debtor derives title to the homestead by

Burrow v. Maxon.

descent, no injury is done to the creditor in exempting the homestead so acquired. The means upon the faith of which he gave credit have not been diverted, and the case does not, therefore, come within the reason of the statute, and the rule that a case not coming within the reason of a remedial statute is not affected by it applies." This was followed in Meador v. Meador, 88 Ky. 217, 10 S. W. 651, 10 Ky. Law Rep. 783, and in Spratt v. Allen, 106 Ky. 275, 50 S. W. 270, 20 Ky. Law Rep. 1822.

Under these cases it is plain that if M. Maxon had left no will, and the land had been set apart to O. W. Maxon in the division of the estate between him and his sisters, it would have been exempt as a homestead, and could not have been subjected to the Burrow debt. Whether M. Maxon left a will or not was a question at issue in the litigation that was settled by the compromise in which his sisters conveyed to 0. W. Maxon the land. Every reason that would exempt a tract of land received by descent would apply to property given in a compromise of a case of that sort. The consideration of the settlement was that O. W. Maxon was one of the heirs at law of M. Maxon, and his sisters conveyed to him this part of the estate, rather than risk his getting more if the will was set aside. If he would have been entitled to the homestead, where his father had settled him on the land and then died intestate, it is hard to see why he should not be equally entitled to it where it was in dispute whether or not his father had left a will, and in settlement of the dispute the property was conveyed to him by the other heirs. He is no worse off as to the homestead, after the compromise was made in the will litigation, than he would have been if he had been successful in the will litigation, and

Jones v. Drake, Judge.

in the division of the estate the property had fallen to him; for the sum of the matter is that what he got was given to him in a compromise as his part of his father's estate. It cannot be maintained that Maxon put into the land in any way means to which the creditor might have looked for the payment of his debt; for he got in the settlement not only the land, but in addition to it $1,000 in money. The case, therefore, falls as clearly within the rule laid down heretofore as any of the cases in which it was applied. See Turner v. Browning's Adm'r, 128 Ky. 79, 107 S. W. 318, 32 Ky. Law Rep. 891. Judgment affirmed.

CASE 66.-ACTION BY T. C. JONES AGAINST B. J. DRAKE, COUNTY JUDGE, TO COMPEL HIM, BY MANDAMUS TO RESTORE A LOST JUDGMENT.-Oct. 6.

Jones v. Drake, Judge

Appeal from McLean Circuit Court.

T. F. BIRKHEAD, Circuit Judge.

From a judgment dismissing plaintiff's petition, he appeals-Affirmed.

1.

Mandamus-When Proper-Re-entry of Judgment.-Under Ky. St. 1903, section 3991, providing that, upon "satisfactory proof" that an unexecuted judgment has been entered and the record thereof destroyed, the court must re-enter the judgment, mandamus will not lie to compel re-entry since the court acts judicially in determining whether the proof is

Jones v. Drake, Judge.

satisfactory; the remedy being by appeal from the order refusing to re-enter the judgment.

2. Same.-Mandamus lies to compel performance of a mandatory duty, or to compel exercise of a judicial function, where there is no other legal remedy, but the exercise of discretion cannot be controlled in a particular direction.

TAYLOR & CLARK, Attys. for appellant.

1. It is alleged in plaintiff's amended petition that the defendant well knew that he, as judge of the court, had rendered the judgment, and that it had been destroyed, and therefore it was not necessary to offer any proof or to allege that proof had been offered on the hearing of a motion to restore the judgment.

2. The demurrer of the defendant to plaintiff's petition admitted all the allegations therein to be true, and this admission dispensed with the necessity for any proof to be offered by the plaintiff.

JOE H. MILLER for appellee.

POINTS AND AUTHORITIES.

1. A court is not authorized to re-enter a judgment, which has been lost or destroyed, by default. (Ky. Statute, 3991; Farrow v. O'Rear, 2 Duval, 261; Haney v. McClure, 88 Ky., 150.)

2. Mandamus will not lie to control the exercise of judicial discretion. (Cassidy v. Young, 92 Ky., 227; Shine v. Ky. Central R. R., 85 Ky., 177.)

OPINION OF THE COURT BY WM. ROGERS CLAY, Commissioner-Affirming.

Appellant, T. C. Jones, seeks in this action a mandamus against B. J. Drake, county judge of McLean county, to compel him to re-enter upon the record of his court a judgment that had been destroyed. It appears from appellant's petition that one W. G. Gibson instituted in the quarterly court of McLean county an action against him on a note for $115. The appellant, who was defendant in that action, pleaded

Jones v. Drake, Judge.

non est factum. The case was heard, and the jury returned a verdict in favor of appellant. Judgment upon this verdict was first improperly entered. Thereafter a judgment dismissing Gibson's petition was entered. In the year 1908 the courthouse of McLean county was destroyed by fire, and all the records of the county judge's office, including the records of the case referred to, were burned. Appellant, after giving notice to Gibson, moved the court to restore the judgment. This the court refused to do. Thereafter appellant filed an amended petition to the effect that the appellee, as judge of the McLean county quarterly court, well knew that the judgment sought to be re-entered had been formerly entered in that court, and that he knew and admitted the judgment had been destroyed by fire. Appellee's demurrer to the petition and amended petition was sustained, and they were dismissed, of which ruling of the court appellant complains.

Appellant contends that this action is authorized by section 3991 of the Kentucky Statutes of 1903. That section is as follows: "When any judgment or final order of any court of record of this State remains unexecuted, and the record thereof has been lost, mutilated, defaced or destroyed, it shall be lawful for any person interested therein, upon ten days' notice, in writing, to the adverse party, to move the court in which such judgment was rendered or final order was made to re-enter the same of record; and, upon satisfactory proof that such judgment or final order had been theretofore entered of record, that the same had been mutilated, defaced or destroyed, and the purport thereof, it shall be the duty of the court to re-enter the same of record; which judgment or final order so entered shall have the same effect

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