Opinion op the Court by
Judge Lindsay:The preponderance of the evidence in this case is clearly in favor of the proposition that the appellee, J. F. Stephenson, had before the institution of this suit ceased to be a resident housekeeper of this State. It may be possible that he intended to *539return from Missouri to Clinton county after making a crop in that State, and that'lie contemplated the possibility-of returning to Kentucky to live in case bis wife was not pleased with, or failed to enjoy £ood bealtb, in tbe west, but bis actions before leaving Kentucky in selling off bis household property, and conveying bis bouse and lot to bis brother tend to show tbat bis principal object in leaving was to acquire a new home. Tbe court therefore did not err in disallowing his claim to the exemption of the house and lot as a homestead. It is a matter of no consequence whether the levy of appellees’ execution created a lien or not. The deed from J. E. to T. V. Stephenson, which was absolute upon its face, though in point of fact a mortgage, obstructed the appellee in the enforcement of his legal remedies, and he, therefore, had the right to go to equity to be relieved against said deed. Although this proceeding is not literally to enforce a lien created by tbe levy of an order of attachment, still we are of opinion tbat tbe judgment of tbe court should have fixed tbe place for tbe sale of tbe real estate, and at least required tbe commissioner to make the same on the first day of some county or circuit court. Eor this error the judgment is reversed. The cause is remanded for further proceedings consistent herewith.
Butler & Brent, for appellant. Winfrey, for appellee.