OpiNion by
The debtor, Oliges, having mortgaged his real estate embracing his homestead and the property being indivisible it was sold for the debt, and the proceeds of the sale having been applied to' its payment, a considerable sum was left for the debtor not exceeding however $1,000. This surplus fund was attached by the appellant upon the ground that as the right to a homestead had been waived as to one creditor and the property sold that no homestead could exist or a right to the surplus vest in the debtor to enable him to purchase a homestead, and further that if allowed to the debtor for that purpose it should only be for investment and that for life leaving the remainder subject to the debt of the attaching creditor.
The waiver of the right to a homestead as to one creditor in the manner provided by the statute did not amount to' a waiver as to any other creditor and when the property embracing the homestead is sold by reason of its being indivisible the statute expressly provides that $1,000 shall be paid tO' the defendant to enable him to purchase another homestead.
It is not a matter of discretion with the chancellor making the sale as to whether the debtor shall receive the money, if he
In the case of Brame & Wife v. Craig, 12 Bush, (Ky.) 404, the owner of the land embracing the homestéad had sold it, and afterwards the husband and wife claimed the homestead as against the purchaser. This court held that the statute creating a homestead right did not take from the owner the power of alienation but was executed solely to protect the debtor against the claims of creditors.
In some of the states it has been held that the power of alienation is gone by reason of their statutes on this subject and in others that the money arising from the sale of the homestead where it is indivisible may under certain circumstances be seized by the creditor even before it reaches the debtor. Such has not been the construction of our statute.
In Lear v. Totten, 14 Bush (Ky.) 101, it is said, where the owner sells his homestead and converts it into money with no' purpose of reinvesting the proceeds in. property not exempt from execution the protection the law affords him against creditors is gone. This of course means where he uses it for other purposes as is clearly indicated in the opinion.
In that case it is said that it is not the duty of the chancellor to see that the money is invested in a homestead. The intention of the statute is to give the debtor a home free from the claims of creditors, and in a case like this the debtor will not be permitted to use the money thus obtained in business or 'speculation and at the same time hold that it is secured against the claims of creditors, because it was the proceeds of property once exempt from execution, still the money must be paid over to him and being entitlted to receive it, an assignment or transfer in good faith for value will pass the right to the assignee as against a creditor whose attachment may be prior in date.
The judgment is affirmed. (See next case for petition for rehearing.)