Broyles v. Cox

• Decision Date: 22 December 1899
• Parties: BROYLES, Appellant, v. COX et al
• Court: Missouri Supreme Court

54 S.W. 488

153 Mo. 242

BROYLES, Appellant, v. COX et al

Supreme Court of Missouri, First Division

December 22, 1899

Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Martin & Woolfolk for appellant.

(1) The mother died in February, 1883, and from that time until his marriage, in 1884, about 18 months, Sumner Cox lived alone on the land, keeping batch. The plaintiff's debt was contracted in March, 1883, when Sumner Cox was living alone on the land. He was not a housekeeper, nor was he the head of a family. There is not a particle of evidence that he controlled, supervised and managed the affairs about the house. Ridenour-Baker Gro. Co. v. Monroe, 142 Mo 165. (a) Nor was there any evidence tending to show that any of the persons living with him were in any manner dependent upon him for support. Thompson Homestead, sec. 46. (b) Nor that he had the right to exact obedience from them, or direct their movements except by consent. Freeman on Exec., sec 222; Whalen v. Cadman, 11 Ia. 227. (2) If Sumner Cox had a homestead at all, it was a homestead under the law of 1875, and upon his death it became assets of his estate and liable for sale, subject to the life use of the widow and minor children until their majority. Under the homestead law of 1875 the creditor has an interest in the homestead. Bank v. Spangler, 59 Mo.App. 172; Schaeffer v Beldsmeier, 107 Mo. 314; Miller v. Leeper, 120 Mo. 466. (a) The homestead law does not create a vested right in a homesteader, the legislature may reduce the value or take it away entirely. Thompson Homestead, sec. 13; Mooney v. Morsorly, 36 Ill.App. 175. (b) The homestead rights to the head of a family is to be determined by the law in force at the time the debt was created. Stewart v. Black, 22 S.E. 177.

Norton, Avery & Young for respondents.

(1) The statute provides a homestead for every housekeeper or head of a family. R. S. 1889, sec. 5435. (a) The filing of the deed for record fixes the date of acquiring the homestead, if debtor has a homestead therein. R. S. 1889, sec. 5441; Finnegan v. Prindeville, 83 Mo. 517. (b) It is not necessary that the head of the family should be under legal obligation to support the other members thereof; it suffices that he is under a moral obligation to support them, and that he does so. State ex rel. v. Kane, 42 Mo.App. 253. (c) A homestead right acquired by the head of a family is not lost by the death or removal of his family, if he continues to reside on the place. Beckman v. Meyer, 75 Mo. 333. (2) Under the homestead law of 1875, the creditor has no interest in the homestead of the debtor. Bank of Versailles v. Guthrey, 127 Mo. 189; Grime v. Portman, 99 Mo. 229. Bank of Versailles v. Guthrey, supra, overrules Schaffer v. Beldsmeier, 107 Mo. 314, and Miller v. Leeper, 120 Mo. 466, cited by appellant. (3) It is within the power of the statute to change the remedy so long as it does not essentially affect rights embodied in the contract; and such change does not infract the rule that forbids the impairment of the obligations of the contract. State ex rel. v. Hager, 91 Mo. 452.

OPINION

MARSHALL, J.

William S. Cox died in Lincoln county, in August, 1896, leaving personal property of the value of $ 292, and fifty-eight acres of real estate of the value of $ 1,316.26, which being duly appraised, by appraisers appointed by the probate court, as of the value stated, was, by order of that court, turned over to his widow, the defendant, Emma Cox, as her absolute property and letters of administration refused "unless on application of creditors or other persons interested the existence of further or other property be shown."

Thereafter in 1897, the plaintiff applied to the probate court for an order granting letters of administration on said estate, alleging that he was a creditor thereof. On a hearing that court granted the application, "holding that the fee in the homestead of the widow is subject to the payment of debts contracted prior to the amendment of the homestead act by the Legislature in 1895." Emma Cox, the defendant, appealed to the circuit court, and that court held that William S. Cox, "at his death or since, owned no property subject to administration" and ordered that no administration be had upon his estate. From this judgment, the plaintiff appealed to this court.

The land in controversy was a part of the estate left by the father of William S. Cox, at his death some time prior to 1861, and was the portion of the father's estate which was set off to W. S. Cox by the voluntary partition between the heirs in 1878. At that time W. S. Cox was unmarried, and lived on this land, and his mother and two unmarried sisters, and a brother, lived with him on the land, and continued so to do until the death of the mother in February, 1883, the marriage of one of the sisters just after her mother's death, and the death of the other sister, shortly afterwards. Thereafter, for eighteen months, W. S. Cox lived on the place alone, until he married, and thence forward he continued to live on it with his family as his homestead until his death in 1896, and his widow and four children have lived on it ever since. A "Mr." Smith, witness for plaintiff, testified that while W. S. Cox, and his mother, sisters and brothers lived on the land, he did not know who supported the family, but that "Sumner" (W. S. Cox) "said they all contracted their own debts and settled them when he and the boys and the old lady lived there; the old lady paid her debts; each was living independent of the other."

Columbus Cox, one of the brothers of W. S. Cox, also a witness for plaintiff, who was the administrator of the mother's estate, testified that the mother left a horse, some cattle and "a few things around the house," which W. S. Cox bought at the administrator's sale; that at the time his mother died: "Sumner and two sisters were living there then. They all lived off of the place. Sumner cultivated the farm then. After the division and Sumner got his piece of land, he and the two girls lived on it with mother until her death in 1883. One of the girls married just after mother's death. Sumner kept batch about eighteen months before he was married in 1884. After he married he lived on the place until he died last year. He left a wife and four children. . . . Sumner and the girls kept house; mother helped along, she attended to the housekeeping; the bills were all run together and all paid together. We all worked and made the money."

This same witness further testified as follows: "Q. Your mother and sisters and you would contract your own bills and pay your own debts? A. No, sir. Q. Did your brother pay any bills for your mother? A. The way that was done, the bill was all run together, everything they bought. Q. All pay together? A. Yes, sir; everything was carried on his name, and he done the paying. Q. Each of you contributed your part? A. We worked and made the money. Q. He done it? A. He was the head of the family. Q. The old lady paid her bills, too? A. No, sir, that's the way it was paid. Of course they raised chickens. Q. Your mother did not contract any store bills in her own name? A. No, sir."

Fred Cox, a brother of the deceased and a witness for defendants, testified: "Sumner was the head of the family, and supported the family; after mother's death he remained there; sisters lived with him a month after; Sumner lived there alone eighteen months and then married and lived there until he died. Left his wife and four children; they are occupying the premises. . . . Sumner provided everything and supported the family. When I lived there the boys all worked together and supported the family."

The plaintiff holds a note made by W. S. Cox, dated March 16, 1883, for $ 150, payable one day after date, with interest at the rate of ten per cent per annum, compounded annually, on which there is a credit of $ 50, March 1, 1886, and $ 100, Nov. 26, 1887.

No declarations of law were asked or given. Appellant here asserts two propositions of law; first, that W. S. Cox was not entitled to a homestead in the land because he was not the head of a family or a housekeeper at the time the land was acquired, in 1878, or at the time the debt to plaintiff was contracted, in 1883; and, second, that if Cox was entitled to a homestead at all it was under the Act of 1875 (Laws 1875, p. 60), which at his death became assets of his estate and liable to sale, subject to the life use of the widow, and the minor children until their majority, and the plaintiff, as his creditor, has an interest in the homestead, and that the homestead act of 1895 (Laws 1895, p. 186), so far as it operates upon debts in existence at that time, "violates the Constitution prohibiting the enactment of laws impairing the obligation of a contract," both of which propositions were called to the attention of the trial court in the motion for a new trial.

This being a proceeding at law, and no declarations of law being asked or given by the trial court, and the facts not being agreed upon or the evidence wholly documentary, we might content ourselves with merely affirming the judgment below for this reason (Sieferer v. St. Louis, 141 Mo. 586, 43 S.W. 163), but as there is no substantial conflict in the evidence as to the facts, it presents, practically, a simple question of law, and we shall so treat it.

From 1878 to February, 1883, when his mother died, William S. Cox owned the land in question. His mother, two sisters and at least one brother lived with him on the land. They all worked, in one capacity or another, much as the members of a man's family living in the country usually do. Both of his brothers, one a witness for and the other against his widow and children, testify that he...