Ahmann v. Kemper

• Decision Date: 17 August 1938
• Docket Number: 35223
• Citation: 119 S.W.2d 256,342 Mo. 944
• Parties: Charles W. Ahmann v. Mary E. Summers Kemper and John W. Kemper, Appellants
• Court: Missouri Supreme Court

119 S.W.2d 256

342 Mo. 944

Charles W. Ahmann v. Mary E. Summers Kemper and John W. Kemper, Appellants

No. 35223

Supreme Court of Missouri

August 17, 1938

Appeal from Montgomery Circuit Court; Hon. William C Hughes, Judge.

Reversed and remanded (on conditions).

Joseph T. Tate, Clark, Boggs, Peterson & Becker and Howard B. Lang, Jr., for appellants.

(1) The court erred in setting aside the deed from appellant, Mary E Summers Kemper, to appellant, John W. Kemper, to the eighty acres of land known as "the Summers eighty" on the ground that it was fraudulent as to plaintiff, because the farm constituted her homestead, and the conveyance of a homestead is not fraudulent as to creditors. Farmers Bank of Higginsville v. Handly, 320 Mo. 754, 9 S.W.2d 880; May v. Gibler, 319 Mo. 672, 4 S.W.2d 769. (2) The court erred in holding that the eighty acres acquired by appellant, Mary E. Summers, and her husband, E. J. Summers by entirety, did not constitute the homestead of Mary E. Summers Kemper on January 24, 1935, the date of the conveyance by her to John W. Kemper, because: (a) The title to this land vested in appellant, Mary E. Summers Kemper, upon the recording of the deed to her and her husband, and not upon the death of her husband. Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67; Frost v. Frost, 200 Mo. 474, 98 S.W. 527; Bains v. Bullock, 129 Mo. 117; Garner v. Jones, 52 Mo. 68; Sharp v. Stewart, 185 Mo. 518. (b) The appellant, Mary E. Summers Kemper, had title to this land, which would sustain her claim to it as a homestead prior to the death of her husband, E. J. Summers, and the title and the right to the homestead could not be defeated by the death of her husband, E. J. Summers. Secs. 608, 2998, R. S. 1929; Clark v. Thais, 173 Mo. 628; Gorman v. Hale, 109 Mo.App. 176; Morrow v. Zane, 185 Mo.App. 111, 170 S.W. 918; Kendall v. Powers, 96 Mo. 142; Rouse v. Caton, 168 Mo. 296; Peake v. Cameron, 102 Mo. 574; Brown v. Brown, Admr., 68 Mo. 388; Thompson, Homesteads & Exemptions, sec. 226; Willis v. Matthews, 46 Tex. 484; Arendt v. Mace, 76 Cal. 315, 18 P. 376, 9 Am. St. Rep. 207; Sharp v. Stewart, 185 Mo. 518; State ex rel. Schwettman v. Oberheide, 39 S.W.2d 397; Luster v. Cook, 297 S.W. 459; McClure v. Virden, 70 F.2d 724; Morrow v. Zane, 185 Mo.App. 111. (c) Where title to land is acquired prior to the inception of the debt, and the land is occupied as a homestead by a householder at the date of levying execution, the land is not subject to execution for a debt incurred after the acquisition of title and prior to the actual occupancy of the land as a homestead. Finnegan v. Prindeville, 83 Mo. 517; Sharp v. Stewart, 185 Mo. 518; Sperry v. Cook, 247 Mo. 132; Palmer v. Omer, 316 Mo. 1188, 295 S.W. 123; Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67; McClure v. Virden, 70 F.2d 724. (d) The trial court failed to give the homestead laws the liberal construction accorded them by all courts of this State. Dennis v. Gorman, 289 Mo. 1, 233 S.W. 50; Armor v. Lewis, 252 Mo. 568, 161 S.W. 251; Prouty v. Hall, 31 S.W.2d 103; Sharp v. Stewart, 185 Mo. 518. (3) The court erred in finding for plaintiff on the second count of the petition, because he did not have title which would sustain ejectment. (4) The judgment of the trial court should be reversed, with directions to enter judgment for the appellants, defendants below. Reed Bros. v. Nicholson, 189 Mo. 406; Armor v. Lewis, 252 Mo. 568; Creech v. Childers, 156 Mo. 338, 56 S.W. 1106.

Claude R. Ball and David R. Hensley for respondent.

(1) Mary E. Summers did not, on January 15, 1935, the date of the conveyance by her to John Kemper, have any right of exemption in the land in question known as the "Summers Eighty" under the homestead laws as against an indebtedness incurred by Mary E. Summers and E. J. Summers prior to the death of her husband, E. J. Summers, which was the date that she became the head of a family and occupied the land as her homestead. (a) Mary E. Summers Kemper could not claim any homestead estate in this land as the widow of E. J. Summers. Sec. 612, R. S. 1929; 2 Thompson on Real Property, sec. 1736, p. 941; Chambers v. Chambers, 92 Tenn. 707, 23 S.W. 67; Jackson v. Shelton, 89 Tenn. 82, 16 S.W. 142. (b) Mary E. Summers did not have the right of homestead exemption as the head of a family until the death of E. J. Summers. Secs. 608, 2998, R. S. 1929; Gladney v. Berkley, 75 Mo.App. 98; White v. Smith, 104 Mo.App. 199, 78 S.W. 51; State ex rel. Schwettman v. Oberheide, 39 S.W.2d 395. (c) Mary E. Summers Kemper did not acquire the absolute fee simple title to this land until the death of her husband, E. J. Summers, April 21, 1923. Fulbright v. Phoenix Ins. Co., 329 Mo. 207, 44 S.W.2d 117; Morrow v. Zane, 185 Mo.App. 11, 170 S.W. 918; Poplar Bluff Trust Co. v. Bates, 224 Mo.App. 636, 31 S.W.2d 93; Oldham v. Wright, 337 Mo. 170, 85 S.W.2d 483. (2) The conveyance by Mary E. Summers to John Kemper was void as to existing creditors as a fraudulent conveyance. Sec. 3117, R. S. 1929; Potter v. Adams, 125 Mo. 118, 28 S.W. 490; Littick v. Means, 195 S.W. 729. (3) The trial court ruled correctly in granting the respondent, Charles W. Ahmann, relief since the appellant, John Kemper, is liable for the antenuptial debts of his wife to the extent of the property acquired from her. Sec. 3004, R. S. 1929; Babb v. Bruere, 23 Mo.App. 604; Wisdom v. Newberry, 30 Mo.App. 241; Todd v. Works, 51 Mo.App. 267.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

The principal contested issue is: Has the wife homestead rights in an estate by the entirety which she may assert subsequent to the death of her husband against an unsecured indebtedness of herself and husband incurred subsequent to the filing for record of the deed conveying said estate. Briefly of the facts.

Edwin J. Summers and Mary E. Summers were husband and wife. The record title to an eighty acre tract of land stood in the name of Mary E. and the record title to an abutting eighty stood in the names of Edwin J. and Mary E. as husband and wife, subject to a secured indebtedness of $ 2,200. Thereafter, on February 27, 1919, Edwin J. and Mary E borrowed $ 2,200 from Charles W. Ahmann, executing their unsecured note therefor, and discharged the aforesaid secured indebtedness therewith. Edwin J., Mary E., and their minor son occupied the two eighties as the home place; and after the death of Edwin J. on April 21, 1923, Mary E. and the minor son continued to so occupy said farm. On January 15, 1935, Mary E. deeded to John W. Kemper the whole of said farm, the recited consideration being $ 1.00 and other considerations; and on January 24, 1935, John W. Kemper and Mary E. Summers were married.

Charles W. Ahmann, having acquired a deed to said farm at a sheriff's sale under special execution in connection with a judgment obtained July 2, 1935, against Mary E. Summers Kemper on the aforesaid $ 2,200 note, instituted this action against said Mary E. Summers Kemper and John W. Kemper, and the tenants on said farm, seeking, in the first count, a decree invalidating said deed from Mary E. Summers to John W. Kemper and the vesting of title in plaintiff, et cetera, and, in the second count, ejectment for possession, damages, rents and profits.

The judgment was to the effect that Mary E. possessed homestead rights in the eighty held in her own name, defeating any rights of plaintiff against said eighty and that the Summers-Kemper deed passed a good title to said eighty; but that the death of a husband cannot create a homestead in the widow in land held by the entirety; that upon Edwin J.'s death Mary E. had a greater estate than a homestead -- the property became her absolute property: she became the sole owner -- and as to the estate formerly held by the entirety Mary E. first acquired absolute title (and first acquired rights of homestead) upon the death of Edwin J., the husband, the head of the family, on April 21, 1923, long after she became indebted to plaintiff (February 27, 1919); and that as to the land formerly held by the entirety said Summers-Kemper deed was void as to plaintiff and title was divested out of John W. Kemper and vested in plaintiff. The judgment on the ejectment count went accordingly.

Defendants acquiesce in the court's finding that the Summers-Kemper deed was fraudulent as to plaintiff and that plaintiff is entitled to have the same declared ineffective unless it conveyed rights -- grantor's homestead -- beyond the reach of plaintiff. Plaintiff has not appealed and the correctness of the holding nisi as to the property held in the wife's name stands unquestioned. The litigants present no contest with reference to the rules of law that a homestead does not exist in land against a prior incurred indebtedness or that an existing homestead is unaffected by a subsequently incurred unsecured indebtedness; but they sharply contest the time when the widow acquires a homestead in an estate by the entirety -- defendants asserting the homestead attaches upon the recording of the grant of the estate and plaintiff asserting the homestead first exists upon the death of the husband (housekeeper or head of the family). We limit the review to such of the presented issues as are deemed determinative of the appeal.

Speaking to the estate by the entirety, we can agree with the court nisi that the wife acquires no homestead rights by descent; that the death of the husband does not create homestead rights in the wife; and that upon the husband's death the wife has a greater estate than a homestead. But the wife has a greater estate in lands held by the entirety than a homestead prior to the death of the husband. The estate by the entirety in Missouri is the same as the common law estate by the...