Daudt v. Harmon

• Decision Date: 28 October 1884
• Parties: CHARLES DAUDT, Appellant, v. JAMES HARMON ET AL., Respondents.
• Court: Missouri Court of Appeals

16 Mo.App. 203

CHARLES DAUDT, Appellant,

v.JAMES HARMON ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Oct. 28, 1884.

APPEAL from the St. Charles Circuit Court, EDWARDS, J.

Affirmed.

C. DAUDT, pro se: A claim of homestead exemption will not avail against the debts created prior to the acquisition of the land sued for.-- Farra v. Quigly, 57 Mo. 289; Stivers v. Horne, 62 Mo. 473; Schindler v. Givens, 63 Mo. 395; Lincoln v. Howe, 64 Mo. 138; The State ex rel. v. Diveling, 66 Mo. 375; Stanley v. Baker, 75 Mo. 60. To make a sale of the homestead by an administrator valid, it must appear that the debt for the payment of which it was sold was contracted before the homstead right attached or was acquired.-- Rogers v. Marsh, 73 Mo. 64; Kelsay v. Frazier, 78 Mo. 111.

LACKLAND & WILSON, for the respondents: The sale by the administrator under the order of the probate court did not carry the homestead interest. The probate court has no power or authority in law to order a sale of the homestead for the payment of a pre-existing debt. It is an inferior court of statutory creation and limited, in its jurisdiction and authority, to the exercise of those powers only which are expressly conferred upon it by statute.-- Presbyterian Church v. McElhiney, 61 Mo. 543; Jefferson County v. Cowan, 54 Mo. 234, 237; Schell v. Leland 45 Mo. 294. Before the homestead rights can be denied, it must be shown that the sale was made for the payment of a pre-existing debt.-- Rogers v. Marsh, 73 Mo. 64, 69, 70; Howe v. McGivern, 25 Wis. 531, 532; Kelsay v. Frazier, 78 Mo. 113, 114. And the burden is upon the plaintiff to prove that it was sold for the payment of such a debt.-- Rogers v. Marsh, 73 Mo. 69, 70; Kelsay v. Frazier, 78 Mo. 113, 114. It is not sufficient to show that one claim allowed against the estate was in fact a pre-existing debt. The records of the probate court must show that fact, and also that the homestead was ordered sold, and was sold for the payment of the pre-existing debt.-- Howe v. McGivern, 25 Wis. 525, 531, 532; Schell v. Leland, 45 Mo. 290, 294.

BAKEWELL, J., delivered the opinion of the court.

This was ejectment for thirty-three acres of land in St Charles County. The answer is a general denial, and set up that the original defendant was a tenant of Charles E. Keene, deceased; that defendants, George and Samuel Keene, are minors aged fourteen and sixteen years respectively, the only sons and heirs of said Charles E Keene; that they defend by their general guardian, Ell Keene; that the premises were the homestead of their father at the time of his death, and worth less than $1,500; that Charles E. Keene is dead; and that the homestead at his death, vested in the minor defendants.

It appears from the evidence and admissions, that the facts set up in the answer are true; that Charles E. Keene died in 1881; that the public administrator of St. Charles County took charge of his estate. The assets of the estate, exclusive of the realty in question, were $543.50, and the claims allowed against it amounted to $2,883.45; of these two were judgments in favor of Overall's estate, rendered against deceased in his lifetime, one for $325.35, and the other for $922.20, which were placed in the fourth class. There were five other allowed demands amounting to $1,635.90. The administrator obtained an order of sale of the realty to satisfy allowed demands. Under the order of sale, the premises in question were appraised at $30 an acre, or $990, free from the homestead rights of the minor heirs, and at $15 an acre, or $495, subject to the homestead right. The plaintiff Daudt was one of the appraisers. Under these proceedings the land in question was sold, and purchased by Mr. Daudt at public sale for $400. The administrator executed a deed to Daudt, under which he claims. The report of sale having been approved, Charles E. Keene moved on to the premises in 1870 or 1871, and occupied them as homestead at the time of his death in 1881. His wife died on the premises a year or two before her husband's death. There are on the premises a dwelling house and orchard, erected and planted by Charles E. Keene about 1871. The premises are not worth over $1,500, and are thirty-three acres in extent.

Against defendant's objection, plaintiff introduced a deed from Cabell and wife to Charles E. Keene for the premises in question, dated and recorded in November, 1867, and evidence tending to show that Cabell claimed the land at the date of the deed, and was in possession when he sold to Keene. Plaintiff, also against objections, offered evidence tending to show that the allowance of the demand in favor of Overall's estate against Keene's estate was made on December 22, 1881, for $325.35 and placed in the fourth class, and that it was upon a judgment of the circuit court rendered September 13, 1875, against John N. and C. E. Keene for $216.93, rendered upon a note dated October 23, 1866, for $130, made by John N. Keene in favor of Charles E. Keene, at six months, and indorsed by the latter.

Plaintiff offered to prove by the administrator that Keene's estate is insolvent; that the purchase-money, $400, paid by Daudt, are the only assets out of which funeral expenses and expenses of administration must be paid, and that there are only two fourth class demands, as already set forth.

Defendants offered to prove by the administrator of Keene's estate, and by defendant Eli, that they were present at the sale and that it was then and there distinctly understood by the bidders and all concerned, that the property was sold subject to the homestead rights of the minor defendants; that, if this had not been understood, the property would have brought a much better price, and that defendants had no notice that it was the intention to sell the homestead for an antecedent debt. This was excluded by the court.

It was admitted that the judgment on the note in evidence was the only claim allowed against the estate that was contracted before the recording of the deed to Keene for the premises in controversy. The court gave and refused instructions which it is not necessary to set out; and of its own motion, gave a...