Acreback v. Myer

• Decision Date: 17 December 1901
• Citation: 65 S.W. 1015,165 Mo. 685
• Parties: ACREBACK v. MYER.
• Court: Missouri Supreme Court

65 S.W. 1015

165 Mo. 685

ACREBACK v. MYER.

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

HOMESTEAD — EXECUTION — FILING DEED FOR RECORD — AMOUNT OF EXEMPTION — APPEAL — SUFFICIENCY OF EVIDENCE.

1. Where a lower court has sustained an execution defendant's motion to set aside the sheriff's sale of a certain lot, the existence of evidence showing the amount due plaintiff, the value of the lot, and that it was a part of a homestead, will be presumed, on appeal, so as to sustain the action of the trial court, as well as the offer of contradictory evidence, though the record, purporting to completely set forth what happened in the trial court, fails to disclose sufficient evidence to warrant a determination.

2. A lot exempt from execution as a homestead cannot exceed $1,500 in value, and five acres of ground in extent.

3. Rev. St. 1899, § 3622, provides that a homestead shall be subject to execution on all causes of action existing at the time of acquiring such homestead, and that such time shall date from the date of filing the deed for record. Held, that to entitle a person to a homestead exemption, to defeat the levy of an execution, it is not enough that he purchased and went into possession before the creation of the execution debt, nor that he some time recorded his deed, but the deed must have been filed for record before the creation of the execution debt.

Appeal from circuit court, Ripley county; Jno. G. Wear, Judge.

Action by Emil Acreback against M. R. Myer. From an order sustaining a motion by defendant to have set aside the sale of an interest in land on an execution in favor of plaintiff, the latter appeals. Reversed.

C. B. Butler and J. C. Sheppard, for appellant. A. J. McCollum, for respondent.

ROBINSON, J.

This case comes here on an appeal from an order of the circuit court of Ripley county sustaining a motion filed in said court by M. R. Myer, an execution defendant, to have set aside the sale of an undivided one-half interest of a town lot described as lot 24, block 6, in the New addition to Doniphan, in said county, made by the sheriff of said county on an execution in favor of appellant, execution plaintiff, and purchaser of the property sold. The reasons set out in the motion to have the sheriff's sale set aside are "that said property is exempt from levy of execution," and "that said defendant claims said property as his homestead." It is difficult to understand how the trial court, from the meager facts before it (yet the record before us purports to give in full all that transpired at the hearing and consideration of the motion), could have arrived at any fair conclusion in the premises; but since the court has acted, and sustained the execution defendant's motion to set aside the sheriff's sale of the lot in question, the propriety of its action in that regard will be considered as if there was testimony before the court tending to show the amount in arrears and the value of the lot in question, and the amount in arrears and the value of the contiguous lot 23 and the buildings thereon, which the execution defendant owned, and upon which he, with his family, then, and for a long time prior to the creation of the debt sought to be enforced by the execution...