Biffle v. Pullam

• Decision Date: 06 February 1893
• Citation: 21 S.W. 450,114 Mo. 50
• Parties: Biffle v. Pullam, Appellant
• Court: Missouri Supreme Court

21 S.W. 450

114 Mo. 50

Biffle v. Pullam, Appellant

Supreme Court of Missouri, First Division

February 6, 1893

Appeal from Bollinger Circuit Court. -- Hon. James D. Fox, Judge.

Reversed and remanded.

Moses Whybark for appellant.

(1) The statute declares the homestead to be exempt to the housekeeper or head of a family from attachment or execution in all cases "except as herein provided." Revised Statutes, 1889, sec. 5435; State v. Pitts, 51 Mo 133; Blandy v. Asher, 72 Mo. 27; Davis v Land, 88 Mo. 436. (2) The terms "housekeeper," or head "of the family," as used in the homestead exemption statute, are not synonymous. The occupant need have no family. If he is a housekeeper the requirements of the statute are fulfilled. Black's Law Dictionary, title "Housekeeper;" Leake v. King, 85 Mo. 413; Murdoch v. Dalby, 13 Mo.App. 41. (3) Besides, the defendant for many years occupied the land, both as a housekeeper and head of a family. The right of exemption once unquestionably existed. The subsequent disruption of his family and divorce of his wife would not defeat it, unless he abandoned the property, which he never did. Beckman v Meyer, 75 Mo. 333. The fact that his wife left him makes no difference. Brown v. Brown, 68 Mo. 388; Whitehead v. Tapp, 69 Mo. 415. (4) The granting of a divorce to defendant's wife and awarding her the custody of the children, did not relieve him of his duty to maintain the children. They were no parties to the quarrels of their parents, and lost no rights thereby. His duty to maintain them remained after divorce as well as before. 2 Bishop on Marriage & Divorce [6 Ed.] sec. 552. On that principle the supreme court of Texas held in a case similar to this that the homestead right in the father still remained. Hall v. Fields, 81 Tex. 553; Zapp v. Strohmeyer, 75 Tex. 638.

W. K. Chandler and W. H. Miller for respondent.

(1) The defendant is not "the head of a family" within the meaning of the statute. James v. Dixon, 20 Mo. 75; Leake v. King, 85 Mo. 417. By the decree of the court, for his fault he was deprived of his wife and the care and custody of his children. (2) Defendant cannot avail himself of the homestead exemption as against a judgment for alimony in favor of his divorced wife. Spengler v. Kaufman, 46 Mo. 644.

OPINION

Brace, J.

This is an action in ejectment for a tract of land in Bollinger county. The judgment was for the plaintiff and the defendant appeals.

The undisputed facts are, that in 1871 the defendant then being a housekeeper and the head of a family acquired by deed duly executed and recorded the fee simple title to the premises in question, and with his family went into the actual occupancy thereof as a homestead; that they continued to so occupy the premises until May, 1887, when the defendant's wife deserted him, and in the following February instituted a suit for divorce against him, in which, such proceedings were had, that at the March term, 1889, of the Bollinger circuit court she obtained a decree of divorce from him and for alimony in gross in the sum of $ 40 and for the custody of the children of the marriage, subject to the right on his part to visit his children and to their services in time of sickness.

On the order allowing her alimony, execution was issued on the nineteenth of March, 1889, to the sheriff of said county, who levied the same upon the tract of land in question, which is less than one hundred and sixty acres in extent and of less value than $ 1,500, to-wit, of the value of $ 600. After the levy the defendant notified the sheriff that he claimed said real estate as his homestead. Nevertheless the sheriff proceeded to sell the same and the plaintiff became the purchaser thereof at the sum of $ 10, with full notice that the premises were claimed and occupied by the defendant as a homestead, and in due time he received the sheriff's deed therefor and brought this suit. The defendant after his wife abandoned him continued to occupy the premises in the same manner as he had done before and so remained in the uninterrupted occupancy thereof up to the time this suit was brought.

I. When a divorce is granted the wife in the courts of this state and alimony awarded her, in addition to other means provided for its collection, the same may be enforced by suing out an ordinary writ of execution. Revised Statutes, 1889, sec. 4505.

The homestead is exempt from such execution in the same manner and to the same extent as in the case of executions upon any other judgment, the law making no exceptions in favor of executions of that character. Revised Statutes, 1889, sec 5435. "A sale on execution under the decree would not defeat the homestead right, inasmuch as it is exempt from execution; and it is immaterial that the wife assented to such sale, or that it was for her benefit. Any such sale would be illegal, and would not affect the homestead." Smyth on Homestead, sec. 308; Doyle v. Coburn, 6 Allen 71; Byers v. Byers, 21 Iowa 268. The wife in this as in the last case cited, "took a general judgment for so much money, and with the execution issued thereunder she can levy upon nothing which would not be...