Balance v. Gordon

• Decision Date: 24 December 1912
• Citation: 152 S.W. 358,247 Mo. 119
• Parties: BALANCE v. GORDON et al.
• Court: Missouri Supreme Court

152 S.W. 358

247 Mo. 119

BALANCE v. GORDON et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1912.

1. HOMESTEAD (§ 5)—CONSTRUCTION OF LAWS.

Homestead laws are to be liberally construed to shield the householder while he lives, and his widow and minor children after his death.

2. HOMESTEAD (§ 139)—RIGHTS OF HEIRS—ATTACHMENT OR LEVY.

Rev. St. 1909, § 6711, providing that a homestead shall be subject to attachment or levy upon causes of action existing when it is acquired, and that the time of filing the deed of a homestead for record shall be deemed the time of acquisition, has, on its face, no application to the vesting of a homestead in the widow and children, since a decedent's estate is not subject to an attachment or levy.

3. HOMESTEAD (§ 214)—ACTION TO RECOVER—PROOF.

Where, in an action by a testator's widow and minor children to recover homestead property sold by creditors after the testator's death, the defendants admitted the existence of the homestead at the time of the creation of the debt, the plaintiffs were not required to prove the date of the recording of the deed to the homestead.

4. DEEDS (§ 192)—PRESUMPTION—RECORD.

In the absence of proof to the contrary in an action for homestead property taken for debt, a deed was presumed to have been put of record presently after the date of its execution.

5. HOMESTEAD (§ 214) — ENFORCEMENT OF RIGHTS—BURDEN OF PROOF.

In an action by heirs to determine title to homestead property sold for decedent's debt after his death, the burden was on the defendant creditors, who bought in the property, to show that their debt was older than the homestead right.

6. CONSTITUTIONAL LAW (§ 99)—REMEDY OF CREDITOR — VESTED RIGHT IN HOMESTEAD LAW.

The fact that a debt accrued and a homestead was acquired while the homestead act of 1875 (Laws 1875, p. 60) was in force gave the creditor no vested right to the remedy given by such act, where the debtor died and the homestead was taken for the debt after the amendment of the homestead act in 1895 (Laws 1895, p. 185); the rights of creditors being measured by the law in existence at the death of the householder.

Appeal from Circuit Court, Moniteau County; W. H. Martin, Judge.

Action by Ollie Balance against Lizzie Gordon and another. From a judgment for plaintiff, defendants appeal. Affirmed.

C. M. Gordon and S. C. Gill, both of California, Mo., for appellants. Moore & Williams, of California, Mo., for respondent.

LAMM, J.

Gilbert Balance, an ex-slave, died full of years and testate on the 1st of August, 1898, in the city of California, seised of lots 25 and 26 in Griner's addition, and leaving a widow, Dolly, and children, one of them, a minor daughter Ollie, the plaintiff. Gilbert by his will, duly probated, devised the lots to Dolly during her life, and, after her death, to plaintiff. Defendants having taken possession of the lots in April, 1908, plaintiff presently sued to determine and adjudge title, averring in her petition facts sufficient to invoke old section 650, and (inter alia) that the lots were the homestead of Gilbert for many years before and at his death. By answer defendants admit Gilbert died as alleged, leaving a will with the provisions alleged, averring that they, defendants, took and held possession, averring they claim as owners and denying plaintiff has any interest, averring that Gilbert acquired title by deed on the 22d day of November, 1893, that thereafter in October, 1894, he executed a note for $40 "in settlement of a debt which he then owed the said Taylor and which he had owed for a long time;" that the note was not paid; that one Hardy was appointed and qualified as administrator of Gilbert's estate; that the Taylor note was allowed against the estate by the judgment of the probate court; that other than the lots there was no property to pay the note or costs of administration; that the lots were ordered sold by the probate court, and were sold to pay the Taylor debt and said costs; that defendants as the highest and best bidders purchased at that sale for $40, and received an administrator's deed; that afterwards, in 1902, they acquired the widow's interest by deed, wherefore by said conveyances they became sole owners of the lots. In conclusion the answer prayed title be adjudged in defendants.

(Note: In one clause the answer sets up title through a deed under a tax proceeding and mesne conveyances, but it developed at the trial that plaintiff was not a party to the tax suit and the court ruled out the record anent that sale. As defendants do not now complain of that ruling, that matter is laid aside on the shelf. This, under the precept: What is not judicially presented should not be judicially decided.)

By replication plaintiff reasserts the claim in her petition, and next avers that the Taylor debt was not legally charged against the homestead of Gilbert Balance in his lifetime, and that the probate proceedings whereby a sale of the homestead was attempted by the administrator were in the teeth of the statutes, and void. The court adjudged title in plaintiff subject to the life estate of Dolly, the widow (now held by defendants); and defendants appeal.

In addition to the admissions in the pleadings, the facts are that the lots were Gilbert's homestead in 1893 and on up to the time of his death. On October 27, 1894, he executed a duebill to one Taylor for $40 payable, one day after date. He paid on the same $27.60. On December 1, 1900, the duebill was allowed in the probate court against his estate in the sum of $21.75, and the lots were sold by proceedings in that court to pay that allowance and costs of administration, defendants becoming the purchasers, and afterwards by quitclaim deed getting the widow's title. Said deed refers to the widow's interest thus: "My interest being a life estate." There was no evidence tending to prove the allegation of the answer that the Taylor note was given in settlement of a debt which Gilbert owed Taylor "for a long time," or for any time prior to the date of the note. There is no direct evidence when Gilbert's deed to his homestead was recorded.

1. There are some general guiding propositions it is not amiss to invoke by way of foreword.

(a) First. The correct judicial attitude toward homestead laws is one of as great liberality in construction as their words and spirit permit. Thus courts should be quick to see and astute to aid the beneficent purposes of homestead statutes. Verily, as nature abhors a vacuum, so enlightened public policy abhors pauperage and vagrancy. The force of homestead laws is spent in preventing both and all their evil attendant train. The broad public policy mentioned is the very life and essence of such laws. So such laws are intended to discourage a mere tenantry. They aim at breeding the virtues springing from rooting citizens to the soil of their country. Bold and self-reliant householders are a nation's pride and defense. Those laws were not framed in the interest of creditors to aid a debt-collecting subversive of homes; contra, they face the other way with emphasis. They are a statutory shield to protect the householder while he lives, and his widow and minor children on his death, from vicissitudes of fortune. All men contracting with a householder contract in the light of such controlling fact. To that end, the homestead is forbidden fruit to the creditor. He may not take or eat thereof. Such statutes are not in contravention of the common law; hence are to be liberally construed. Above all, they are not to be dwarfed or whittled away by sour, overnice, or austere construction. In effect, one or the other of those propositions is announced in one or the other of the following cases (q. v.): Blandy v. Asher, 72 Mo. loc. cit. 28; Gowdy v. Johnson, 104 Ky. 648, 47 S. W. 624, 44 L. R. A. 400; Brewington v. Brewington, 211 Mo. loc. cit. 60 et seq., 109 S. W. 723; Vogler v. Montgomery, 54 Mo. loc. cit. 583; Bushnell v. Loomis, 234 Mo. loc. cit. 391 et seq., 137 S. W. 257, 36 L. R. A. (N. S.) 1029; Seilert v. McAnally, 223 Mo. loc. cit. 516, 122 S. W. 1064, 135 Am. St. Rep. 522.

(b) Second. The difficulties incident to the exposition of our several homestead statutes, as abundantly shown by appellate cases, have been so prevalent and acute as to lead to dicta afterwards repudiated, or to rulings afterwards exploded or modified. It seems difficult to hold a uniform voice in applying the details of homestead statutes, worded as ours. Hence, the wiser course in homestead judicial construction is to decide no more than precisely what the case in judgment calls for, and nothing without caution. Giving heed to the foregoing, we come to a closer view of the case.

2. Something is said of the tenor and effect that the record does not disclose the date of record of the homestead deed. The point is, we suppose, that under section 6711, R. S. 1909 (in force at the time of the administrator's sale), a method is pointed out for ascertaining what homesteads shall be subject to attachment and levy of execution, it being provided by that section that a homestead should be subject to attachment and levy upon all causes of action existing at the time of acquiring the homestead, and, further, that "for this purpose such time shall be the date of the filing in the proper office for the records of deeds, the deed of such homestead," etc. Given that provision in that section, is it to be read into the section relating to vesting homesteads in widows and minor children? In passing we call attention to the fact that there is a well-marked distinction between the quality of a mere exemption privilege in the householder, and the estate vesting in his widow and minor children. Brewington v. Brewington, supra. As said, section 6711 pertains to attachment and...