Smith v. Enos

• Decision Date: 16 May 1887
• Citation: 4 S.W. 269,91 Mo. 579
• Parties: SMITH and others v. ENOS.
• Court: Missouri Supreme Court

4 S.W. 269

91 Mo. 579

SMITH and others v. ENOS.

Supreme Court of Missouri.

May 16, 1887.

HOMESTEADS — EXCHANGE OF — CLAIMS.

Under Rev. St. Mo. § 2695, providing that a homestead shall be subject to claims existing at the time of acquiring it, the date of recording the deed to be considered

such time, and section 2696, providing, in substance, that, when a new homestead is acquired in place of a former one, such new one shall not be subject to claims to which the original homestead was not subject, a homestead obtained by exchange for a former one is not subject to claims arising between the time of the execution of the deed of such new homestead and the recording of it.

Appeal from circuit court, Holt county.

C. W. Thomas and T. C. Dungan, for respondents. Zook & Stokes and T. H. Parish, for appellant.

NORTON, C. J.

This is a suit in ejectment to recover possession of certain land in Holt county. On the trial plaintiffs obtained judgment, from which the defendant has appealed. It is conceded that both plaintiff and defendant claim through one Eppler as the common source of title. The following facts appear in the record, viz.: That said Eppler acquired a homestead on 40 acres of land in Atchison county by deed dated April 2, 1870, which was duly recorded on that day; that he, with his family, occupied said land as his homestead from that time until the fifteenth October, 1874, at which time he exchanged said homestead to one Walkup for the land in controversy, and executed a deed to said Walkup, conveying his homestead in Atchison, receiving at the same time from said Walkup, in exchange, a deed conveying to said Eppler the land in question, who moved with his family on the land thus conveyed, and resided continuously thereon till he sold and conveyed it to defendant, on the twenty-fifth January, 1881. It further appears that Eppler did not file for record the deed he received from Walkup till the fourth day of January, 1878; that previous to the filing of said deed for record said Eppler, on the fourth of September, 1875, became indebted to one Smith on two promissory notes, upon which judgment was rendered by the circuit court of Holt county on twenty-fifth April, 1878, in favor of one Roecker, to whom they had been assigned; that on the thirty-first January, 1881, execution was issued on said judgment, and levied upon said land, under which it was sold to plaintiff Fannie Smith, who received a sheriff's deed therefor.

Notwithstanding the undisputed fact that Eppler has acquired a complete homestead right to the land in Atchison county, and notwithstanding the fact that he exchanged with Walkup said homestead for the land in controversy, which he immediately moved onto with his family, and occupied continuously as his homestead till he sold and conveyed the same to defendant, in 1881, the plaintiffs claim that such homestead was nevertheless liable to seizure and sale under execution issued on a judgment rendered on a debt contracted by Eppler after such exchange, and before ...