Blandy v. Asher

• Decision Date: 30 April 1880
• Citation: 72 Mo. 27
• Parties: BLANDY et al., Appellants, v. ASHER.
• Court: Missouri Supreme Court

72 Mo. 27

BLANDY et al., Appellants,

v.ASHER.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Gentry Circuit Court.--HON. S. A. RICHARDSON, Judge.

REVERSED.

Ejectment. Plaintiffs claimed through a sale under execution against Lewis Asher. The defendant, who was formerly the wife of said Lewis, but had obtained a divorce from him, claimed under the homestead act.

Geo. W. Lewis, Wm. Hubbard, Bennett Pike and Vinton Pike for appellants.

Lay & Belch, with Goodman, Collins & Howell for respondents.

SHERWOOD, C. J.

The questions presented by the record are: 1st, Was the right acquired by the wife by reason of her filing her statutory claim to the homestead, lost in consequence of the divorce she subsequently obtained? 2nd, Even if such right was defeated and determined as to the wife, by the judgment which dissolved the marital relations existing between the parties, does such overthrow as to the wife's right in the premises, entitle plaintiffs to be successful in this action? These questions will be considered in the order presented

1. DIVORCE, AS AFFECTING WIFE'S HOMESTEAD RIGHTS.

No one can read with any degree of attention the provisions of our homestead act without reaching the same conclusion arrived at by most courts in construing similar legislative enactments, that such provisions were designed to mark out a course of enlightened public policy, whereby each family might secure a shelter, a place of refuge, against the storms of financial misfortune, which the greatest amount of human prudence and sagacity cannot always avert. Taking such a view, courts, for the most part, have held that these homestead laws, being of a liberal and beneficent nature, being designed to prevent pauperism and vagrancy and their consequent temptations to crime, should not be dwarfed, and their evident purpose thwarted by a narrow and illiberal construction. Thompson on Homesteads, § 1, et seq., and cases cited. Such statutory exemptions respecting land, are not in derogation of common law, and consequently, not to be strictly construed, because the whole matter of the sale of real estate under fi. fa., likewise its exemption from such sale, is of purely statutory origin and regulation. Ib., §§ 2, 3 and 4.

The law under which Alice Asher filed her claim, is as follows: “The homestead of every housekeeper, or head of a family, consisting of a dwelling house and appurtenances, and the land used in connection therewith, * * shall, together with the rents, issues and products thereof, be exempt from attachment and execution, except as herein provided, * * and any married woman may file her claim to the tract or lot of land occupied or claimed by her and her husband, or by her, if abandoned by her husband, as her homestead; said claim shall set forth the tract or lot claimed, that she is the wife of the person in whose name the said tract or lot appears of record, and said claim shall be acknowledged by her before some officer authorized to take proof or acknowledgment of instruments of writing affecting real estate, and be filed in the recorder's office, and it shall be the duty of the recorder to receive and record the same. After the filing of such claims, duly acknowledged, the husband shall be debarred from and incapable of selling, mortgaging or alienating the homestead in any manner whatever. Every such sale, mortgage or alienation is hereby declared null and void, and the filing of any such claims as aforesaid with the recorder shall impart notice to all persons of the contents,” etc. This law was approved and took effect March 24th, 1873. Acts 1873, p. 16, § 1; R. S., § 2689.

The judgment upon which plaintiffs rely, was rendered against Lewis Asher March 12th, 1873, the execution issued and levied two days thereafter, and the sale occurred September 1st of that year. Prior to that sale, August 23rd, 1873, the then wife had filed her claim to the homestead. She obtained a judgment of divorce at the September term, 1875. Lewis Asher, her husband, left her August 11th, 1872, and returned but once, and that was about three years before the trial of this cause, at the September term, 1876. The place claimed by Alice Asher had been occupied and resided on by herself, husband and family of children, as a home, from 1864 up to the time he left; and since that time she and her minor children had continued thus to reside on and occupy it; and she was in fact, if not in law, the head of the family.

The above being, then, the facts in this case, the question proposed at the outset recurs: Did the wife by the exercise of her statutory right to obtain a divorce, lose her previously acquired statutory right to her homestead? In the State v. Pitts, 51 Mo. 133, it was said: “The legislature in the provisions of the law respecting homesteads uses the broadest language and exempts from attachment and execution, the homestead in all cases, except as therein provided.” And so it was held in that case, that though in general the State is not within the purview of a statute unless specially named, yet that, as no reservation was made in the homestead act in favor of the State, the homestead of the defendant could not be sold under an execution issued in the name of the State on a forfeited recognizance. Neither in instances like the present does the homestead act make any reservation in favor of a creditor as against the homestead of a wife, who, abandoned by her husband, files her claim and secures her homestead, because of the very fact of such abandonment.

It is to be observed, that while the statute under consideration is careful to provide a way whereby a woman, abandoned by her husband, may gain a homestead, that statute nowhere provides any means whereby the homestead thus gained shall be forfeited and lost. And who shall gainsay the statute? The rule of the statute is the exemption of the homestead; and that exemption prevails, “except as therein provided.” State v. Pitts, supra. By the express terms of the statute, after the wife's claim is filed, the husband is “debarred from and incapable of selling, mortgaging or alienating the homestead in any manner whatever; and every such sale, mortgage or alienation is hereby declared null and void.” And the only exception to the entire inalienability of the wife's homestead, thus acquired, is that provided by a subsequent clause of the same section, where, by her own voluntary act, she may join with her husband in conveying such homestead. Under a somewhat similar statute in Illinois, where the amendatory act of 1857 prohibited alienation by the husband without the concurrence of the wife, it was held that the statute created a homestead exemption in her, as against the creditors of the husband and his alienees. Turner v. Bennett 70 Ill. 263.

But it is said that the section above quoted “is designed for the benefit of abandoned wives, not divorced wives.” This position, though plausible and ingenious, is untenable; and it is untenable for this reason, if no other; It would require an interpolation of the statute with words to this effect: Provided, however, that whenever the wife, thus abandoned, shall obtain a divorce because of such abandonment, she and her minor children may be forthwith ejected from the homestead, acquired as aforesaid, by any creditor who theretofore may have sold such homestead under execution issued against her former husband. I know of no authority, and possess no inclination to thus judicially legislate. And yet it is only by means of such judicial legislation that plaintiffs' position can be upheld, for the statute, as it stands, uses no such language as that used by way of illustration, nor any expression from which a similar meaning can reasonably be inferred. And it would be strange indeed if the law were otherwise than I have stated; strange indeed, that the legislature should so sedulously, should with such emphatic language prohibit the husband from disposing of the homestead, and yet permit the deserted wife, divorced because deserted, and her helpless little ones, to be ruthlessly expelled, at the instance of some rapacious creditor, from the very shelter that the law said should be hers, upon the filing of her claim for that purpose. Surely, a law conducing to such harsh results, would possess no single attribute entitling it to be called “liberal, wise and benevolent,” ““beneficent” or “humane in its character,” or as one “especially designed to guard the wife and children against the neglect, the misfortunes and improvidence of the father and husband.” State ex rel. Meinzer v. Diveling, 66 Mo. 375, and cases cited.

The reason of the law is said to be the life of the law. If the homestead act is especially designed for the protection of the wife and children, how does the reason for their protection cease, because the wife is separated from her husband by divorce instead of by death? And how is the necessity for that protection diminished, because the fact of abandonment gives simultaneous origin to the right of homestead and the right of divorce? The same law which gives the deserted wife the right of...