Brune v. Rathbun
| Decision Date | 08 September 1947 |
| Docket Number | 40186 |
| Parties | Edward H. Brune, Appellant, v. Edgiththa G. Rathbun and William R. Rathbun, Her Husband; Lillie May Grant, John Schlueter, W. H. Wingfield, Jr., Trustee, and Walker Woolridge, Beneficiary Under Deed of Trust, Respondents |
| Court | Missouri Supreme Court |
From the Circuit Court of Lincoln County, Civil Appeal, Judge Theodore Bruere
Affirmed
This action is in three counts, the first to quiet title, the second ejectment and the third partition. The trial court found the issues in favor of the defendants and plaintiff appealed.
Respondents filed a motion to dismiss the appeal suggesting that the brief of appellant violates Rules 1.08 and 1.15 of the Supreme Court of Missouri. Appellant, on pages 2, 3 and 4 of his brief, has made a statement sufficient to present the question to be decided. The trouble with appellant's statement is, that on pages 5 to 35 inclusive he has copied the pleadings, agreed statement of facts, the judgment of the court and the motion for new trial, all of which also appear in the transcript. We treat this portion of appellant's brief as surplusage and overrule the motion to dismiss.
A stipulation of the facts agreed to by the parties, upon which this controversy rests, reveals the following: William H Grant, the common source of title, died in Wentzville, St Charles County, Missouri, on January 7, 1934. He owned a residence in Wentzville, where the family resided, appraised at $2500. He also owned the land in question, 112.24 acres located in Lincoln County, Missouri, and appraised at $2240. This land had been and was rented at the time of Grant's death, Grant collecting the rents during his lifetime. The personal property in the estate was valued at less than $100. Claims allowed against the estate amounted to $1058.95. Grant's heirs were his widow, Lillie May Grant; Edgiththa Grant Rathbun, a daughter; and three grandchildren, Ruth Grant, Margaret Grant and Edna Grant, children of a deceased son. These grandchildren were minors at that time. The widow, Lillie May Grant, was appointed administratrix of the estate. In due time she filed a petition in the Probate Court of St. Charles County, Missouri, to have the land in Lincoln County, Missouri, sold to pay the claims allowed against the estate. At the sale, held on December 20, 1934, the defendant, Edgiththa Grant Rathbun, purchased the land for $2,000. She and her husband, William R. Rathbun, and Lillie May Grant were made defendants in the case, as well as John Schlueter, tenant on the land, W.H. Wingfiled, Jr., trustee, and Walker Wollridge, beneficiary under a deed of trust.
The plaintiff, on December 17, 1943, purchased the interest in the land, if any, of the three grandchildren. He filed this suit May 25, 1946. It was stipulated that the probate court did not at any time appoint commissioners to set out a homestead or the widow's dower as provided for by sections 612 and 614, Mo. R.S.A., R.S. Mo., 1939; that the right of the widow to assert her dower was barred by the statute of limitations at the time this suit was filed.
The question for decision is whether the administratrix' deed conveyed title. Defendants claim it did, while plaintiff claims the deed was void for the reason that the probate court did not appoint commissioners to set out homestead and dower. The question presented is not difficult of solution. A homestead is not subject to execution to satisfy debts contracted after the homestead has been acquired. Sperry v. Cook, 247 Mo. 132, 152 S.W. 318; Sec. 608 R.S. Mo., 1939, Mo. R.S.A. Land which is not a part of the homestead may be sold on execution for any debts contracted and if the wife is not a party the sale is valid, but the purchaser takes title subject to the wife's dower interest. 28 C.J.S. 135, sec. 63, Holt v. Hanley, 245 Mo. 352, 149 S.W. 1; Lientz v. Schotte, 295 Mo. 333, 243 S.W. 890 l.c. 891. When an owner of land dies the law as to the rights of creditors remains the same. The homestead is not subject to the claims against the estate and cannot be sold to satisfy the same. A sale of the homestead would be void. Sec. 608, supra; Kay v. Politte, 344 Mo. 805, 129 S.W.2d 863 l.c. 864 (1), 865 (2,3). Land which is not a part of the homestead may be sold to satisfy claims against an estate provided the personalty is insufficient. Sec. 141, R.S. Mo., 1939, Mo. R.S.A. Such a sale, if widow's dower is not set out, is made subject to the dower interest. A widow may at any time within the time provided by law make claim for her dower. Sections 339 and 363 R.S. Mo., 1939, Mo. R.S.A.; 17 Am.Juris. 743, sec. 90; 28 C.J.S. 177, sec. 86.
In this case the agreed statement of facts discloses that the land in question was not a part of the homestead. We have not overlooked the fact that a homestead may exist in land that is not contiguous or...
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