Casebolt v. Donaldson

• Decision Date: 30 April 1878
• Citation: 67 Mo. 308
• Parties: CASEBOLT v. DONALDSON et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 308

CASEBOLT

v.DONALDSON et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Ray Circuit Court.--HON. GEORGE W. DUNN, Judge.

C. T. Garner & Son for respondent, argued that a party may lose his right of homestead by making no claim to it, or by acts which amount to a waiver or estoppel of his claim; also that there is no homestead in personalty.

Donaldson & Farris for appellants.

HENRY, J.

George Casebolt obtained a judgment against John B. Paul, in the circuit court of Clinton county, and had an execution issued thereon directed to the sheriff of Ray county, which was levied upon the w. 1/2 of the n e qr. of Sec. No. 2, township No. 53 of range 26, in said county, the property of said Paul, upon which, with his family, he resided. The land was sold under the execution, and was purchased by Casebolt in February, 1876. Paul executed a deed conveying the said land to Thomas J. Dodd, as trustee, to secure the payment of a note for $200, held against him by Donaldson and Farris. Whether the judgment in favor of Casebolt, or the deed of trust, was prior in date does not appear, nor is it material. On the 28th day of January, 1876, Dodd sold the land in pursuance of the terms of the deed of trust, and Donaldson and Farris purchased it at the price of $550, and after satisfying their debt and the expenses, they owed of said purchase money $299.75. Casebolt had a garnishment served on Donaldson and Farris, in order to subject the amount due from them to the payment of the balance of his judgment. They answered interrogatories, setting forth the foregoing facts, and alleging that Paul claimed the money under the homestead law, and denying Casebolt's right to the money, unless he relinquished his claim to the land under the execution sale. Paul filed an interplea, claiming the money under the homestead law. The questions presented are, whether the homestead law exempted the money from Casebolt's execution, and if not, whether Casebolt, having purchased the same land and claiming it, as above stated, was entitled to it as against Donalson and Farris.

When the execution in favor of Casebolt was levied upon the land in question, Paul did not designate, under Sec. 2 of the homestead act, the part thereof to which the exemption should apply, nor did the sheriff, as provided in that section, appoint three disinterested appraisers to fix the location and boundaries of such homestead. No attention whatever was paid, either by the sheriff or the defendant in the execution, to the provisions of the homestead law.

The homestead is a statutory right--a strictly legal right--and while the act should be liberally construed to effectuate its benign purpose, yet equitable principles, other than those recognized by the act, cannot be invoked by one claiming a homestead right. The statute confers the right and states the circumstances under which it shall exist; and if a very liberal construction of its terms will not embrace the claimant's demand, it cannot be admitted. The first section provides that: “The homestead of every housekeeper, or head of family, consisting of a dwelling house,...