Armor v. Lewis
| Decision Date | 24 November 1913 |
| Parties | ANN ARMOR et al., Appellants, v. J. T. LEWIS et al |
| Court | Missouri Supreme Court |
Appeal from Crawford Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
A. H Harrison, A. S. Cowden and Neville & Gorman for appellants.
The law of 1895 left the remainder after the homestead subject to the payment of the homesteaders' debts. Broyles v Cox, 153 Mo. 242; In re Powell's Estate, 157 Mo. 151. Under the Law of 1875 the probate court could sell the remainder after homestead before the expiration of homestead. Keene v. Wyatt, 160 Mo. 1, overruling Broyles v. Cox, 153 Mo. 242, and In re Powell's Estate, 157 Mo. 151; Robbins v Boulware, 190 Mo. 33; Balance v. Gordon, 247 Mo. 119. After the death of the homesteader the widow and minor children take a fixed and definite estate inseparable and inseverable -- the widow an estate for life, to be defeated by remarriage; the minors each an estate for years, with duration till their respective majorities. This leaves a remainder subject to sale at once for payment of debts the same as that of any other reversionary estate. Brewington v. Brewington, 211 Mo. 48; White v. Spencer, 217 Mo. 242; Black v. Epstein, 221 Mo. 286. The proceedings of the probate court, when acting within its jurisdiction, are unimpeachable collaterally, are conclusive, and are entitled to the same presumptions and force as courts of general jurisdiction and although error may be committed, yet after final order approving sale and deed thereunder the title passes and it is not subject to collateral attack. Covington v. Chamberlain, 156 Mo. 574; Cox v. Boyce, 152 Mo. 576; Rogers v. Johnson, 125 Mo. 202; Macey v. Stark, 116 Mo. 481; Sherwood v. Baker, 105 Mo. 472; Price v. Springfield, 101 Mo. 107; Camden v. Plain, 91 Mo. 117; Rowden v. Brown, 91 Mo. 429; Ferrix v. Ferrix, 80 Mo. 27; Henry v. McKerlie, 78 Mo. 416; Johnson v. Beasley, 65 Mo. 251.
Harry Clymer for respondents.
The law governing the homestead rights of the widow and children of a homesteader is that in force at the date of the death of the husband and father. Register v. Hensley, 70 Mo. 194; Burgess v. Bowles, 99 Mo. 547; Ailey v. Burnett, 134 Mo. 313; Bushnell v. Loomis, 234 Mo. 284; Keene v. Wyatt, 160 Mo. 9. The law in force at the date of the death of John W. Lewis was the Act of 1895, and under this law the land comprising the homestead was not subject to sale at all for debts of the deceased homesteader, unless legally charged thereon in his lifetime. Sec. 3620, R.S. 1899; Broyles v. Cox, 153 Mo. 242; In re Powell's Estate, 157 Mo. 151. The Broyles case and the Powell case have never been overruled, in so far as they construe the Homestead Law of 1895. In the Keene case, decided by Court in Banc, the law construed was the Homestead Law of 1875. Keene v. Wyatt, 160 Mo. 9. The facts which form the basis of the Robbins case, 190 Mo. 1, arose under the Law of 1875, which was materially different from the Act of 1895, in so far as the right to sell the homestead was concerned, and there is really no conflict between the Robbins case and the Broyles and Powell cases. To make this sale by the administrator to pay debts of the deceased valid, it must be shown that the debts were contracted before the homestead right of John W. Lewis was acquired, and the burden of showing this rested upon the appellants. Rogers v. March, 73 Mo. 69; Kelsay v. Frazier, 78 Mo. 114; Anthony v. Rice, 110 Mo. 229. If, as this court held in the Broyles and Powell cases, supra, this land was not subject to sale under the Law of 1895, then the probate court had no jurisdiction to order the sale; and if it had no jurisdiction to order the sale, its judgment was absolutely void and the deed thereunder conveyed no title. This doctrine is so well established in this State that no citation of authority is necessary in support of it. The cases cited by appellants on the question of jurisdiction are cases in which the court had jurisdiction to make the order it made, and in which the orders and judgments were questioned on account of some irregularity appearing in the record.
OPINION
In Banc.
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, Revised Statutes 1909.
Attend to the facts and circumstances: In November, 1896, John W. Lewis died seized 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, 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. 698, 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; 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, and its per curiam in Banc. [p. 9, quod vide.] In Poland v. Vesper, 67 Mo. 727, it was held that, because of the peculiar wording of the Homestead Act of 1875, 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.] 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 Valliant and Marshall, JJ., in New Madrid Banking Company v. Brown, 165 Mo. 32, 65 S.W. 297, throw 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 Division One did not agree), that the Balance-Gordon case may be differentiated or distinguished in principle from the one at bar. But I am...
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