Armor v. Lewis

Decision Date24 November 1913
Citation161 S.W. 251,252 Mo. 568
PartiesARMOR et al. v. LEWIS et al.
CourtMissouri Supreme Court

Bond, J., dissenting.

In Banc. Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Suit by Ann Armor and others against J. T. Lewis and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

A. H. Harrison, of Steelville, and A. S. Cowden and Neville & Gorman, all of Springfield, for appellants. Harry Clymer, of Steelville, for respondents.

LAMM, C. J.

Plaintiffs are heirs and descendants and devisees of deceased heirs of S. H. Headlee, deceased. Some of defendants are children and heirs and some husbands of daughters of John W. Lewis, deceased. The suit, one to determine and adjudge title to real estate in Crawford county, is bottomed on former section 650, now section 2535, R. S. 1909.

Attend to the facts and circumstances: In November, 1896, John W. Lewis died seised of the farm in dispute as a homestead, with other land not subject to homestead, leaving a widow and six minor children. In 1899, by a proceeding in the probate court, a homestead was carved out of said lands, appraised and set off to said widow and six minors. From thence on things moved off at a smartish pace; for one year later Sweyers, administrator of Lewis, by a proceeding in the same probate court, got an order to sell and did sell said homestead, "subject to the homestead rights of the widow and minor children," to pay claims allowed against the estate. (Note: The record shows the indebtedness did not accrue before the acquisition of the homestead by decedent.) At that sale S. H. Headlee, one of the creditors, purchased for $75 and received an administrator's deed. In 1901 the widow died, the children continuing to reside on the homestead. In 1909, the date of the judgment in the instant case, two of them were yet minors and four had attained their majority. Both the proceedings to set off homestead and sell for debts were in form; hence details are unimportant. The issue below hinging on the efficacy of that deed to convey title, the pleadings were appropriate to that issue and need no further attention.

The trial court held that, under the facts stated, the homestead could not be sold in course of administration to pay debts at large not created before the acquisition of the homestead. Plaintiffs appealing, the question is: Under the Homestead Act of 1895 (Laws 1895, p. 185), was the sale valid, and did the administrator's deed convey title?

Instructions were given for defendants in accord with (and refused for plaintiffs against) the theory of the judgment. We have been inclined to view suits to declare and adjudge title under old section 650 as of an equitable nature, except where the issue was title by limitations, accretions, or the like. Peniston v. Brick Co., 234 Mo. loc. cit. 700, 138 S. W. 532. If, then, the suit was in equity, instructions fill no office. If at law, then the office of instructions was merely to indicate the trial theory of the court. In any event, to determine the cause on appeal we need pay no attention to them, because the facts and judgment sufficiently indicate the trial theory.

We are of opinion the judgment should be affirmed both on authority and reason.

(a) On authority, because the Homestead Act of 1895 has been construed to mean that land subjected to homestead cannot be sold in course of administration to pay debts of a decedent, where such debts were created subsequent to the acquisition of the homestead and not charged thereon in the lifetime of the deceased householder. Broyles v. Cox, 153 Mo. 242, 54 S. W. 488, 77 Am. St. Rep. 714; In re Estate of Powell, 157 Mo. 151, 57 S. W. 717; Balance v. Gordon, 247 Mo. 119, 152 S. W. 358. That construction has never been departed from; hence those cases must either be overruled or the point be held against appellants.

True it is that a supposition has been indulged (sometimes arising to the dignity of an impression) that the authority of the Broyles-Cox and Powell Cases has either been shaken or exploded by later cases; but, as held in the Balance-Gordon Case, that impression is an airy nothing without substance. This becomes apparent when we consider Keene v. Wyatt, 160 Mo. 1, 60 S. W. 1037, 63 S. W. 116, and its per curiam in banc. 160 Mo. 9, 60 S. W. 1037, 63 S. W. 116, quod vide. In Poland v. Vesper, 67 Mo. 727, it was held that, because of the peculiar wording of the Homestead Act of 1875 (Laws 1875, p. 60), a homestead might be sold in course of administration to pay debts, subject to existing rights of the widow and minor children. Now, the Broyles-Cox and the Powell Cases arose on sales made after the act of 1875 was repealed and while the act of 1895 was in force. Therefore the latter act was alone held in judgment in those cases. However, the court in deciding them discussed the act of 1875 and announced obiter doctrines contra to the holding in the Poland-Vesper Case. When the Keene-Wyatt Case was here, our attention in banc was called to that condition of things, and we repudiated so much of the opinions in the Broyles-Cox and Powell Cases as construed the act of 1875 contra to the holding in the Poland-Vesper Case, returning to and reaffirming its doctrine as a sound construction of the act of 1875. Robbins v. Boulware, 190 Mo. 33, 88 S. W. 674, 109 Am. St. Rep. 746. But, observe, the banc per curiam in the Keene-Wyatt Case left those cases as authority so far as they construed the act of 1895. We so held in the Balance-Gordon Case.

In addition to what is held of set purpose in the Balance-Gordon Case in that regard (and after full consideration), the explanatory remarks of Judges Valliant and Marshall in New Madrid Banking Company v. Brown, 165 Mo. loc. cit. 39, 65 S. W. 297, throws a clear light on the question and may be consulted with profit.

We shall not leave this branch of the case without a further observation, viz.: It was suggested (in the original opinion of Bond, J., in the instant case, to which this division did not agree) that the Balance-Gordon Case may be differentiated or distinguished in principle from the one at bar. But I am unable to agree to the ground of differentiation, running after this fashion, viz.: That case held in judgment the rights of a devisee, whereas this holds in judgment the rights of heirs by descent cast. Suppose that be so, what legal principle is involved in the difference of fact? How can that inconsequential fact take this case out of the doctrine of the maxim, "Concerning similars the judgment is the same"?

When well looked to, in principle it must be certain that, if the case at bar is to be ruled for appellants, then the Balance-Gordon Case was badly ruled; for has it ever been held by any respectable court that, as to a creditor, a devisee stands on a better foot than an heir? Does a will, qua will, touch or in aught affect the right of a creditor of the deceased householder, dying testate, to have satisfaction of his debt out of testator's property? Does not a devisee take cum onere precisely as does an heir, under any view of the law? If, then, an administrator's deed under an order of sale by the probate court, made during the existence of a homestead estate, passes no title as to the devisee of the testator, as held in the Balance-Gordon Case, how can it pass title as to the heir of an ancestor? The question carries its own answer shining on its face.

We shall not overrule the Broyles-Cox, the Powell, and the Balance-Gordon Cases. Stare decisis.

(b) The result reached in paragraph "a" also is reached if we consider the question on the wording of homestead statutes and on the reason of the thing. Thus:

(1) In the first place, it must be admitted that, as a general proposition ...

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