Butler v. Roer

• Decision Date: 29 April 1912
• Parties: JOHN P. BUTLER, Appellant, v. FRANCIS W. ROER, Executor, et al., Respondents. ALEXANDER W. MULLINS, Appellant, v. FRANCIS W. ROER, Executor, et al., Respondents
• Court: Kansas Court of Appeals

146 S.W. 811

163 Mo.App. 283

JOHN P. BUTLER, Appellant, v. FRANCIS W. ROER, Executor, et al., Respondents.

ALEXANDER W. MULLINS, Appellant, v. FRANCIS W. ROER, Executor, et al., Respondents

Court of Appeals of Missouri, Kansas City

April 29, 1912

Appeal from Cole Circuit Court.--Hon. John M. Williams, Judge.

AFFIRMED.

Judgment affirmed.

Pope & Lohman and R. W. Morrow for appellants.

John P Butler for respondents.

OPINION

BROADDUS, P. J.

By agreement these two cases were consolidated as the facts are similar, and the question of law the same in both. The facts are, that on the 23d day of March, 1893, as evidence of a pre-existing debt, Judge Gavon D. Burgess gave his note to plaintiff Butler for the sum of $ 400, bearing eight per cent interest from date. No payments were made on the note, but it was kept alive by various written promises of Burgess to pay. Judgment was obtained in the circuit court on the note on October 31 1911, for the sum of $ 995.37, the then amount of the note and accrued interest.

In May 1890, Burgess became indebted to plaintiff Mullins in the sum of $ 525 for which he gave his note bearing eight per cent interest, due at various dates; no payments were made thereon, but they were also kept alive by written promises until April 13, 1903, when Mullins remitted all interest then due, and took Burgess' note for $ 525, the principal amount payable three years after date. This note was reduced to judgment October 31, 1911, for $ 864.88, the amount of the same and accrued interest.

On September 1, 1894, Burgess purchased, and had conveyed jointly to himself and then wife, Cordelia Trimble Burgess, a residence and homestead in the city of Jefferson, now of the agreed value of about $ 8000. The two took possession of the property purchased, and continued to use and occupy it as their residence until September 17, 1908, when the wife died, without issue, thus vesting in her husband the entire estate as surviving grantee, and he remained in possession. On the 17th day of July, 1909, Burgess married the respondent, May Burgess, and with the latter as his wife, continued in the occupation of the said premises. On the 17th of December, 1910, Burgess died testate, naming defendant Roer as his executor, who qualified and is now acting as such, and the deceased left surviving him only collateral kindred.

The suit of plaintiff Butler was begun in the circuit court on the 26th day of January, 1911, to establish his claim against the executor, and to obtain a decree against the widow, postponing her marital right of homestead in said property to plaintiff's judgment, on the ground that such homestead was not acquired, nor the deed thereto filed for record, until September 1, 1894, after plaintiff's debt had accrued, and that as to such debt she could have no homestead.

On January 27, 1911, plaintiff Mullins began his suit in the same court, with substantially the same allegations, and praying for a like relief.

In the Butler case the executor filed an answer containing a general denial and a plea of the Statute of Limitations. The defendant May Burgess' answer admitted the indebtedness, but set up a claim of homestead to the property, and asserting that for that reason it was not subject to the payment of plaintiff's debt. In the Mullins case the executor filed no answer, but May Burgess filed an answer in like terms with the one filed in the Butler case.

Requests were made in each case for a written finding of facts, and at the close of the cases declarations of law were submitted to the court. The plaintiffs likewise submitted to the court a written finding of the facts, admitted by the pleadings and in open court on the trial, and requested a finding in accordance therewith. The court refused to find the admitted facts as requested, refused the declarations of law as tendered in each case, and rendered judgment for each plaintiff for the amount of his claim as hereinbefore stated and ordered such judgments certified to the probate court of the county, and in each case dismissed the petition as to May Burgess, and adjudged against each ...