Canole v. Hurt

• Decision Date: 31 October 1883
• Citation: 78 Mo. 649
• Parties: CANOLE v. HURT et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

78 Mo. 649

CANOLE

v.HURT et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1883.

Error to Howard Circuit Court.--HON. G. W. BURCKHARTT, Judge.

AFFIRMED.

Herndon & Herndon for plaintiff in error.

S. C. Major for defendant in error.

PHILIPS, C.

This is an action of ejectment, begun in 1879, by Robert Canole, a minor, by guardian, to recover of defendants a tract of land in Howard county containing 28 65-100 acres, more or less. Ouster laid on the 20th day of August, 1878. The answer tendered the general issue.

The case was tried on the following agreed statement of facts: That John Canole, at the time of his death, was seized in fee and possessed of the tract of land described in plaintiff's petition; that said John Canole left a widow, Mary Canole, and a minor child, Robert Canole, the plaintiff; that Charles B. Canole is the guardian of said Robert Canole; that the defendant George W. Hurt is an infant, of whom Mark Jackman is the guardian; that said Mary Canole, widow, after the death of her husband, John Canole, married ____ Todd, who left her; and the said Mary, without obtaining a divorce from said Todd, married defendant, Henry Hurt; and defendant George W. Hurt is her only child by said marriage with Henry Hurt; that the said land was duly set off to Mary Canole and her minor child Robert Canole, as a homestead under the provisions of the statute, and while said Mary was the widow of John Canole.

The order of the court setting out such homestead was here read in evidence, in words and figures following, to-wit:

“Mary Canole against David Pipes, administrator of the estate of John Canole, deceased. In the Howard county court, February 9th, 1870. David Peeler, John Walker and William H. Settle, commissioners, appointed at the last term of this court to set out to plaintiff a homestead, present their report, and it appearing to the court that the tract of land described in the petition and in the said report filed, was valued by said commissioners at $860, and that sum is less than the value of a homestead allowed by law, and that said commissioners have set out the whole tract as a homestead for said plaintiff and her child, Robert Lee Canole, according to the provisions of the statute in such cases, it is, therefore, ordered by the court that the report of said commissioners be, and the same is approved and confirmed and ordered to be recorded, and the tract of land described therein set out to Mary Canole and Robert Lee Canole as a homestead, according to the statute aforesaid.”

It was further admitted that the defendants were in possession of the land in controversy at the commencement of this suit, and are now in possession, and that the value of the monthly rents is $5. There was no other evidence. The court found the issues for the plaintiff, and the defendant brings the case here on error.

The question for discussion arising on the agreed statement of facts has not been directly decided in this State, though the principle involved has, in effect, been settled. The homestead claim represented arose under the statute of 1865. The fifth section of the homestead act reads as follows:

“If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead, to the value aforesaid, shall pass to and vest in such widow or children, or if there be both, to such widow and children, without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime; and such widow and children, respectively, shall take the same estate therein of which the deceased died seized; provided, that such children shall, by force of this chapter, only have an interest in such homestead, until they shall attain their majority, and the probate court having jurisdiction of the estate of such deceased housekeeper or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.”

From this section one thing is clear to my mind, and that is, the legislature did not intend to secure the privileges and benefits of the homestead exemption and estate to any other person or persons than the widow and minor children of the “head of the family” who died seized of such homestead. The manifest object was to preserve to the head of the family during his life the enjoyment of the home property as a means of shelter and protection, as also a means of better securing the unity of the family. Its further purpose was, upon his death, to devolve the estate upon his widow and minor children just as he held it, and for the same beneficent end--that of keeping his widow and dependent...