Beckmann v. Meyer

• Decision Date: 30 April 1882
• Citation: 75 Mo. 333
• Parties: BECKMANN v. MEYER, Appellant.
• Court: Missouri Supreme Court

75 Mo. 333

BECKMANN

v.MEYER, Appellant.

Supreme Court of Missouri.

April Term, 1882.

1. Homestead.

A homestead right acquired by the head of a family is not lost by the death of his wife or the removal of his children, if he continues to reside on the place.

2. ______.

A homestead may be sold and another acquired with the proceeds, and the premises sold pass to the vendee discharged of judgment debts of the vendor.

3. ______.

The visible occupancy of the premises as the head of a family, under a recorded title, fixes the character of the property as a homestead.

4. ______: ESTOPPEL: ATTORNMENT.

The fact that A., the vendee of homestead property which was afterward sold under execution against the vendor, recognized the validity of the latter sale so far as to attorn to the purchaser at the sheriff's sale, does not estop him from asserting his rights by a proceeding to set aside the sheriff's deed.

5. ______: SHERIFF'S SALE: RELEASE OF INCUMBRANCE.

Where the creditors of a vendor who has conveyed his homestead extinguish an incumbrance thereon, and sell the property under execution against the vendor, the purchaser at the sheriff's sale cannot have the original incumbrance enforced against the property in an action brought to set aside the sheriff's deed. The release was executed without instigation from the debtor's vendee, and the purchaser at sheriff's sale cannot be relieved from the consequences of his erroneous impression that the homestead property conveyed was subject to the claims of the vendor's creditors.^a1

Appeal from St. Louis Court of Appeals.

AFFIRMED.

H. C. Lackland and Theodore Bruere for appellant.

Chas. Daudt for respondent.

HENRY, J.

The opinion of the court of appeals in this case satisfactorily disposes of the questions presented by the record herein, and its judgment is affirmed.

All concur.

The opinion of the St. Louis court of appeals was delivered by LEWIS, P. J., as follows:

In 1860, the plaintiff's father, Henry Beckmann, Senior, purchased from one Werner a farm containing about thirty acres, and moved thereon with his family, adopting it as his home. He had a wife and an only son, the plaintiff herein, who attained his majority in 1867, and afterward married, but, except for a short time, continued to live with his father until after the sale of the farm under execution, as hereinafter stated. Mrs. Beckmann, the elder, died in 1870. On September 24th, 1872, a judgment was rendered in the circuit court in favor of Charles Teichmann & Co., and on March 5th, September 5th and September 8th, 1873, judgments were rendered in favor of other parties, all against Beckmann, Senior, and aggregating upwards of $7,000. On March 8th, 1873, the farm was conveyed from the father to the son for the expressed consideration of $1,800. On March 19th, 1874, the farm with other real estate, was sold by the sheriff under the judgment above mentioned, as the property of Beckmann Senior, and was purchased by the defendant and others acting with him, who have since conveyed their interest to the defendant. This suit is for a cancellation of the sheriff's deed conveying the farm, on the ground that, as the homestead of the defendant in execution the property was exempt from levy and sale. The circuit court decreed for the plaintiff.

One defense was, that the deed from Beckmann, Senior, to Beckmann, Junior, was without consideration, and was fraudulent and void as against creditors. There was no testimony to sustain this charge. It was shown that the son had worked for his father, upon an understanding that he was to be paid $20 per month, for about six years after he became of age; that he never received any money and that, upon a settlement, the amount of consideration for the deed was reached by a calculation of the amount remaining due for the work. It was also shown that the father had previously given to his son another farm and put him in possession thereof; that after its occupancy by the young man for about a year, no deed having been delivered, the father found an opportunity for a favorable sale of the land, and proposed to his son an exchange of the Werner farm for the other. This was agreed to, and Beckmann, Junior, moved with his family back to the place which was still occupied by Beckmann, Senior. Subsequently, the deed was executed and delivered, as before mentioned.

The question upon which the controversy chiefly turns is, whether any homestead right existed, that could be made available against the sheriff's sale. It is insisted that Beckmann, Senior, was neither a householder nor the head of a family when the Teichmann judgment was rendered. This and two other judgments, amounting in all to more than $14,000, ante-dated the deed to Beckmann, Junior. But it cannot be disputed that the homestead right was complete at the time of Mrs. Beckmann's death, in 1870. This being true, it remained unimpaired after that event, unless destroyed by some act of abandonment or voluntary relinquishment. It seems to be settled, on general principles, that a homestead once acquired by the head of a family will not be defeated or lost by the death or absence of his wife and children, if he continue to occupy it. Any other construction would render a husband who has been deprived of his family by accident or disease, or by their desertion without any fault of his, liable to be instantly turned out of his homestead by his creditors. Silloway v. Brown, 12 Allen 30; Taylor v. Boulware, 17 Tex. 74; Myers v. Ford, 22 Wis. 139. It appears in this case, that the old man continued to live on the farm after the death of his wife; and even after his conveyance to Beckmann, Junior, the father and the son with his family occupied the same house, with no apparent change in their domestic arrangements. Provisions were furnished sometimes by the father and sometimes by the son, and no accounts were kept between them. The proceeds of crops were generally collected by the old man. The testimony generally tended to show that the value of the farm was about $1,500; though at the sheriff's sale it was knocked off for $2,700. The law, in securing a homestead against creditors, does not render its humane provision ineffectual, by prohibiting an alienation of the premises. The householder may sell his homestead, and with the proceeds acquire another. This would be impossible, if the alienation of the first would subject it to judgment debts of the vendor. A judgment creates no lien upon a homestead, and, therefore, none will follow it into the hands of the vendee. Green v. Marks, 25 Ill. 221; Cole v. Green, 21 Ill. 104; Smith v. Allen, 39 Miss. 469; Smith v. Rumsey, 33 Mich. 191; Black v. Epperson, 40 Tex. 162. By Wagner's Statute, 699, § 8, when a new homestead is...