Barton v. Walker
| Decision Date | 19 November 1901 |
| Parties | KIMBER BARTON, Appellant, v. WALKER |
| Court | Missouri Supreme Court |
Appeal from Texas Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded.
White & McCammon for appellant.
(1) The head of a family can have only one homestead exempt at a time, and the homestead owned and used as such at the time the debt accrues is the one exempt. Stanley v Baker, 75 Mo. 60; Goodall v. Boardman, 53 Vt 92. In the case at bar, the respondent owned and lived on a homestead in Mt. View, Howell county, at the time the debt was contracted and at the time suit was brought thereon. This homestead was exempt from levy in satisfaction of appellant's debt. Respondent subsequently sold it and moved on to the farm, then for the first time claiming the latter as his homestead. It is not exempt under the above authorities. Our statute being derived from that of Vermont the construction of the Vermont courts is authoritative. Macke v. Byrd, 131 Mo. 689; Shindler v. Givens, 63 Mo. 394. (2) Actual occupancy is necessary in order to fix upon the premises its character of homestead. Brown v. Lindsey, 95 Mo. 258; Goodall v. Boardman, 53 Vt. 92; Elston v. Robinson, 23 Iowa 208; Finnagan v. Prundville, 83 Mo. 520. (3) At the time respondent first formed the intention of making the farm a homestead and when he attempted to impress it with that character by moving on to it, he had no title to it. The legal title was in Holden, who held it as a sort of trust for respondent. But a homestead can not be claimed in an equitable estate. Griswold v. Johnson, 22 Mo.App. 466; Shindler v. Givens, 63 Mo. 394; Tennant v. Pruitt, 94 Mo. 145; Thompson, Homestead, sec. 300. (4) Defendant disclaims as to one forty and only claims homestead in 160, therefore, plaintiff should have had judgment for that forty in any event.
A. H. Livingston for respondent.
Ejectment for land in Texas county. Plaintiff claims under sheriff's deed conveying the land sold under execution on judgment in favor of Barton Brothers against defendant. Defendant claims that the land was his homestead and exempt for execution.
The facts are as follows: The debt on which the judgment was founded was contracted in 1894. At that time defendant resided with his family in Mountain View, Howell county, in a dwelling owned by himself, and was engaged there in mercantile business. At the same time he owned the farm in suit in Texas county and a farm in Howell county. His deeds to the Texas county lands were obtained and recorded in 1890 and 1891. In the spring of 1895 he fell into financial trouble, his property was attached, and his health gave way. On March 20, 1895, he conveyed the Texas county land, by deed of that date, to one Holden, a friend, without any real consideration and for the purpose of having Holden convey it to his (defendant's) wife. That deed was recorded April 18, 1895. Holden held the title until September 13, 1895, when he reconveyed 160 acres of the land to defendant and the rest to defendant's wife. In April, 1895, defendant resolved to move with his family to the Texas county farm and make it his home. He began to move in April but, some affliction in his family occurring, his moving was not complete until the eighth or tenth of May, 1895, since which date he has resided on the farm claiming the 160 acres as his homestead. The suit in which judgment was rendered was commenced by attachment in the circuit court of Howell county, March 25, 1895, founded on a note dated March 8, 1895; the attachment was placed on the Texas county farm May 20, 1895, and the final judgment confirmed the attachment. The judgment was rendered April 28, 1897, execution issued May 5, and the land sold thereunder July 6, 1897, and bought by plaintiff who holds the sheriff's deed. It was agreed at the trial that the value of the 160 acres was less than $ 1,500 and the rents and profits of the premises was $ 5 a month. The court rendered judgment for defendant and the plaintiff appeals.
The only question presented on this appeal is, was the defendant entitled, as against the debt in judgment, to hold the property as a homestead exempt from execution.
Our statute (sec. 5441, R. S. 1889, same sec. 3622, R. S. 1899) expressly renders the homestead subject to attachment and execution upon causes of action existing at the time of the acquiring such homestead except as therein otherwise provided, "and 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.
It is not disputed that the defendant acquired a homestead in the 160 acres, but it is denied that he acquired it before the cause of action existed on which the judgment in this instance was founded. The evidence shows that the debt accrued in the summer of 1894, but it took the form of a note dated March 8, 1895. It is immaterial for the crucial point in this case which of those dates be taken: March 8, 1895, will serve the plaintiff's claim as well as the earlier date. If, in the sense of the statute quoted, the date of filing his title deeds for record by the defendant is to be taken as the date of his acquiring the homestead right, then that date, which was 1890 or 1891, was long prior to the debt on which the judgment was founded. And on the other hand, if the date of acquiring the homestead right was the date of his beginning to occupy the land as a homestead, which was in April, 1895, or, if it was to date from the time Holden reconveyed the land to him, which was September 13, 1895, then it was after the debt accrued. The date of filing the Holden deeds for record does not seem to be given in the abstract before us, but that does not impair the defendant's claim here, because the deeds if recorded at all must have been after their date, September 13, 1895.
Before the defendant gave up his residence in the town of Mountain View and before he began to move to the land in question with a view of making it his place of residence, that is, on March 20, 1895, he conveyed the title to the land by deed of that date to Holden; therefore, from April, 1895, when his occupancy of the land as a homestead began, to September 13 of the same year, when Holden deeded it back to him, his relation to the property was that of the owner of the equitable estate, occupying it as a homestead, with the title lodged in another person. That, at least, is the most favorable view that can be taken of the case for the defendant, for, as the land was conveyed to Holden to be conveyed by him to defendant's wife, there might arise a question if, while Holden held the legal title under those conditions, defendant owned the equitable estate; but as above said, we will assume for the purpose of this case that he did.
A distinguished text-writer on this subject has said that a homestead right may be had in an equitable estate. [Thompson on Homesteads, sec. 170.] And we see no reason to question that proposition. We have held that a homestead may exist in an equity of redemption. [State ex rel. v. Mason, 88 Mo. 222; Meyer v. Nickerson, 101...
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