Stinde v. Behrens

• Decision Date: 31 October 1883
• Citation: 81 Mo. 254
• Parties: STINDE v. BEHRENS et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

81 Mo. 254

STINDE

v.BEHRENS et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1883.

Error to St. Louis Court of Appeals.

REVERSED.

Sam'l N. Holliday for plaintiffs in error.

1. It is no concern of the creditor to which member of the family, husband or wife, the homestead belongs. Thompson on Homesteads, § 224; Hixon v. George, 18 Kas. 253; Monroe v. May, 9 Kas. 466. 2. The Atchison property was the homestead of Rudolph Behrens, his wife and four minor children, and was totally exempt from all process, and could not even be conveyed by him alone nor incumbered, and no creditor could reach it or touch it. Morris v. Ward, 5 Kas. 259; Dollman v. Harris, 5 Kas. 597; Monroe v. May, 9 Kas. 466; Moore v. Reeves, 15 Kas. 150; La Rue v. Gilbert, 18 Kas. 222; Coughlin v. Coughlin, 26 Kas. 116. 3. The homestead in Atchison being exempt from execution, the debtor could not commit fraud upon his creditor by disposing of it; he could only commit a fraud on his creditors by disposing of such of his property as the creditor had the legal right to look to for the payment of his debt. Hixon v. George, 18 Kas. 253; New Orleans v. Morris, 105 U. S. 600; Deutzer v. Bell, 11 Wis. 114; Pikes v. Miles, 23 Wis. 164; Bond v. Seymour, 1 Chandler (Wis.) 40; Vaughan v. Thompson, 17 Ill. 80; Wood v. Chambers, 20 Tex. 247, 254; Cox v. Shropshire, 25 Tex. 113, 124; Smith v. Allen, 39 Miss. 469; Mortel v. Somers, 26 Tex. 551; Lisby v. Perry, 6 Bush. 515; Anthony v. Wade, 1 Bush. 110; Morton v. Ragan, 5 Bush. 334; Foster v. McGregor, 11 Vt. 595; Bump on Fr. Con., p. 268; Story's Eq. Jur., (6 Ed.) p. 411, § 367, and cases cited; Sumner v. McCray, 60 Mo. 493; Winchester v. Gaddy, 72 N. C. 115; Monroe v. May, 9 Kas. 466; Hibbern v. Soyer, 33 Wis. 319; Stewart v. Wooley, 2 W. Z. M. 470. 4. The wife has an estate in the homestead in Kansas--a valuable property right. Helm v. Helm, 11 Kas. 19; Brandon v. Brandon, 14 Kas. 342; Moore v. Reeves, 15 Kas. 150; Wicks v. Smith, 21 Kas. 412; Otto v. Sprague, 27 Kas. 620; Hixon v. George, 18 Kas. 253; Hammond v. Sommer, U. S. Cir. Ct. 1881, Fed. Reporter, March 28th, 1882, p. 601; Citizens' Bank v. Bowen, 25 Kas. 117. 5. The execution of the deed of conveyance of the homestead by the wife, was a sufficient consideration on her part to entitle her to receive the proceeds of the sale as her own property. Citizens' Bank v. Bowen, 25 Kas. 117. 6. In no view that can be taken of the matter, in the light of recent Kansas decisions as to the interest of the wife in the homestead, can this court hold that the husband furnished the whole of the consideration, and the plaintiff must fail in this suit.

Finkelnburg & Rassieur for defendant in error.

Laws of exemption and homestead have no extra-territorial force, and proceeds of property exempt from execution in another state, are not on that account protected from execution when found in this State. Boykin v. Edwards, 21 Ala. 261. When property is sold with intent to leave the state, the proceeds are not protected by the statute; the intent to leave the state withdraws therefrom the protection of the statute. State v. Davis, 46 Mo. 108; Jordan v. Godman, 19 Tex. 275; Traweck v. Harris, 8 Tex. 312; Tenney v. Sly, 44 Ind. 269; Orr v. Box, 22 Minn. 485. Rights of homestead and exemption are of favor, and are not vested rights. Sparger v. Compton, 54 Ga. 359. And affect only the remedy. Helfenstein v. Cave, 3 Iowa 287; Nuvall v. Hayden, 8 Iowa 140; Morgan v. Neville, 74 Pa. 52. And are strictly legal rights, not to be extended by mere equitable principles. Casebolt v. Donaldson, 67 Mo. 308. A wife has only a privilege, and has no estate, in a homestead in Kansas; when she consents to a sale, her whole interest is gone, no matter what motive she had in consenting. Inness v. Cutter, 12 Kas. 516. The Kansas lands having been sold in the case at bar, with intent to leave the state, the proceeds became subject to the judgment of plaintiff, and could not be given away or concealed, with fraud committed against him. Homestead in Missouri is not exempt from debt contracted before the filing of the deed of the homestead property. Wag. Stat., 699. Unless it be brought within the proceeds of a prior homestead exempt from such debt under the laws of Missouri.

HOUGH, C. J.

In 1874 the defendants, as husband and wife, occupied, as a homestead, certain property in the town of Atchison, Kansas, the legal title to which, was vested in the defendant, Rudolph Behrens. After the acquisition of said property, as a homestead, said Rudolph became indebted to the plaintiff, and being so indebted, he and his wife, Wilhelmina, in September, 1874, conveyed said homestead to Anna M. Gusching, and in payment therefor, said Anna and her husband conveyed to the defendant, Wilhelmina, in fee, lots 60, 61, 62 and 63, in block 71, in the city of Carondelet, and also, paid to her $600 in money, and assumed a mortgage of $300 on the Atchison property. In 1875 the plaintiff recovered a judgment against Rudolph Behrens on the indebtedness aforesaid, and at a sale, under execution, issued on said judgment, purchased all the right, title and interest of said Rudolph, in and to said lots in Carondelet, conveyed to said Wilhelmina, and, thereupon, instituted the present suit to set aside the conveyance of said lots to Wilhelmina, as having been made in fraud of the rights of the creditors of said Rudolph Behrens, her husband, and to invest himself with title thereto. The circuit court rendered judgment for the defendants, which was reversed by the court of appeals.

If the consideration for the property conveyed to Mrs. Behrens was property of her husband, to which creditors had a right to resort for the payment of their debts, then the plaintiff had a right to subject the property, so conveyed to her, to the satisfaction of his judgment; otherwise he had not. By the laws of Kansas, which were in evidence before the referee by whom the cause was heard, Rudolph Behrens could neither convey nor encumber the homestead, which was the consideration for the Carondelet property, without the consent of his wife, although he may have paid the entire consideration for such homestead, and have taken the title in his own name. It was not subject to the debts of either husband or wife, and could only be disposed of with the joint consent of both. What the precise nature of the right or interest of the wife in and to the homestead is, it is unimportant to inquire. The supreme court of Kansas has declared that, although it may be difficult of definition it is, nevertheless, an estate in the land; an existing interest, with...