Balance v. Gordon

• Decision Date: 24 December 1912
• Parties: OLLIE BALANCE v. LIZZIE GORDON and PEARL GORDON, Appellants
• Court: Missouri Supreme Court

152 S.W. 358

247 Mo. 119

OLLIE BALANCE v. LIZZIE GORDON and PEARL GORDON, Appellants

Supreme Court of Missouri, First Division

December 24, 1912

Appeal from Moniteau Circuit Court. -- Hon. W. H. Martin, Judge.

Affirmed.

C. M Gordon and S. C. Gill for appellants.

Under the Homestead Law of 1875, Sec. 5439, R.S. 1889, the homestead of deceased could be sold to pay the debts of deceased, subject to the homestead rights of his widow and minor children. Keene v. Wyatt, 160 Mo. 1; Robbins v. Boulware, 190 Mo. 33. The construction of the Homestead Law of 1875 was as much a part of the contract of indebtedness -- the Taylor note in this case -- as any other part of it. Broyles v. Cox, 153 Mo. 251; 36 Cyc. 1210 and 1211. Homestead exemption rights are effective only from date of filing for record the deed to such homestead. Sec. 5441, R.S. 1889; Acreback v. Myer, 165 Mo. 685. If the construction of the Homestead Law of 1875 was a part of Taylor's contract with Balance -- said note dated Oct. 27, 1894 -- then such homestead of deceased was subject to sale to pay said debt, whether debtor died prior to or after said amendment of 1895 to said Sec. 5439, R.S 1889. If the debt of Taylor was contracted before the filing of the Balance deed for record, it was subject to be sold to pay said debt under any theory of this case; but if such deed were filed for record prior to date of debt expressed in said note dated Oct. 27, 1894, the creditor, Taylor, under the Homestead Law then in effect, had the right to rely on Balance paying same if he lived, and in case of his death to rely on the construction of said homestead law then in force to have said homestead sold to pay said debt, subject to the homestead rights of said widow, Dolly Balance, and any minor children, and that subsequent legislation could not take away this right.

John M. Williams for respondent.

(1) The pleadings and evidence in this case admit and show that the property in controversy was the homestead of Gilbert Balance, purchased by him November 22, 1893, that he built a cabin on it immediately afterwards, and lived there until his death. The debt and the only debt probated against his estate was due Taylor and dated Oct. 27, 1894, nearly a year after the homestead was acquired by Balance. The debt due said Taylor as evidenced by said note, having occurred after the acquisition of the homestead, the homestead was not liable for its payment. Sec. 5439, R.S. 1889. There is no evidence showing that the debt was contracted before the note was given. (2) It devolved on the defendants to show all the facts necessary to authorize the probate court to authorize the sale, and these facts require the court to find that the debt from Balance to Taylor was prior to the deed and also prior to the filing of such deed for record. Anthony v. Rice, 110 Mo. 229; Rogers v. Marsh, 73 Mo. 64; Kelsay v. Frazier, 78 Mo. 112.

OPINION

LAMM, J.

Gilbert Balance, an ex-slave, died full of years and testate on the 1st of August, 1898, in the city of California, seized 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 forty dollars "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 forty dollars 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 admission 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 due bill to one Taylor for forty dollars 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.

I. 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. 27; Gowdy v. Johnson, 104 Ky. 648, 47 S.W. 624; Brewington v. Brewington, 211 Mo. 48, 109 S.W. 723, et seq.; Vogler v. Montgomery, 54 Mo. 577; Bushnell v. Loomis, 234 Mo. 371, 137 S.W. 257, et seq; Seilert v. McAnally, 223 Mo. 505, 122 S.W. 1064.

(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.

II. Something in 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 Sec. 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...