Crary v. Standard Investment Co.

• Citation: 285 S.W. 459,313 Mo. 448
• Parties: B. F. CRARY, Appellant, v. STANDARD INVESTMENT COMPANY and FRED A. RICHARDSON
• Decision Date: 26 March 1926
• Court: United States State Supreme Court of Missouri

285 S.W. 459

313 Mo. 448

B. F. CRARY, Appellant, v. STANDARD INVESTMENT COMPANY and FRED A. RICHARDSON

Supreme Court of Missouri

March 26, 1926

Appeal from Jackson Circuit Court; Hon. Thomas B. Buckner Judge.

Affirmed.

Stubbs & Wolfe for appellant.

(1) Homestead statutes are to be liberally construed to protect the homestead. The correct judicial attitude toward homestead laws is one of as great liberality in construction as their words and spirit permit. Balance v. Gordon, 247 Mo 124; Pocoke v. Peterson, 256 Mo. 501; Keeline v Sealey, 257 Mo. 498; Haggard v. Haggard, 233 S.W. 18. (2) Homestead statutes are not in controvention of the common law. Balance v. Gordon, 247 Mo. 124; Brewington v. Brewington, 211 Mo. 48; Sperry v. Cook, 247 Mo. 132. (3) A creditor, who through legal process lays his hands on a homestead, must justify his action by carrying the burden of showing not only that he has a cause of action, but that such cause of action is superior to the homestead. The evidence shows indisputably that plaintiff has had a homestead in the premises since December 27, 1910, the date of filing for record his deed to the homestead. There is no dispute between the parties that the homestead dates back that far. In attempting to levy upon and sell this homestead, defendant takes the burden of showing: (a) that it has a valid cause of action; and (b) that such cause of action is superior to the homestead. Balance v. Gordon, 247 Mo. 127; Rogers v. Marsh, 73 Mo. 69; Anthony v. Rice, 110 Mo. 229; Kelsay v. Frazier, 78 Mo. 111. (4) Defendant has no valid cause of action to enforce against the homestead. Defendant obtained judgment against plaintiff in Kansas September 26, 1912, and on February 28, 1920, defendant brought suit against plaintiff upon said foreign judgment in Missouri, and thereafter recovered a judgment against plaintiff by default, which judgment was followed by execution and levy upon plaintiff's homestead. At the time plaintiff instituted suit in Missouri upon the Kansas judgment said Kansas judgment was dead, extinguished, and had ceased to be a judgment, and therefore no action could be based thereon. In Kansas the law is that a judgment becomes dormant or dead when an execution is not sued out thereon within five years from the date of the judgment. G. S. Kan. 1915, secs. 7346, 6914; Mawhinney v. Doane, 40 Kan. 676; Smalley v. Bowling, 64 Kan. 818. (5) The Kansas law operated to destroy the cause of action and after the Kansas judgment became dormant or dead it was incapable of supporting an action either in Kansas or in Missouri. This point has been ruled upon by the Supreme Court of Missouri and is not now open to question. Berkley v. Tootle, 163 Mo. 584; St. Louis Foundry Co. v. Jackson, 128 Mo. 119; Miller v. Connor, 177 Mo.App. 630. (6) Even if defendant had a cause of action to enforce it was not existing at the time the homestead was acquired, and so cannot be enforced against the homestead. Sec. 5860, R. S. 1919; Sperry v. Cook, 247 Mo. 132; Tourville v. Wabash, 140 Mo. 623; Cooksey v. Railroad, 74 Mo. 477; Hawkins v. West, 167 Mo.App. 439; Chenault v. Yates, 216 S.W. 817; Bank v. Witmer, 171 Mo.App. 352; Cowgill v. Robberson, 75 Mo.App. 412; Stauffer v. Remick, 37 Kan. 454; Ashton v. Clayton, 27 Kan. 626; Price v. Bank, 64 P. 637; Winham v. Kline, 77 Mo.App. 36. (7) The homestead was not abandoned. Snodgrass v. Copple, 131 Mo.App. 346; Victor v. Crimmer, 118 Mo.App. 592; Pocoke v. Peterson, 256 Mo. 501; Keeline v. Sealy, 257 Mo. 498; First Nat. Bank v. Woelz, 197 Mo.App. 686.

Dwight M. Smith and R. E. Ball for respondents.

(1) Date of recording deed fixes time of acquiring homestead exemption rights with respect to "causes of action existing at the time of acquiring such homestead." Sec. 5860, R. S. 1919; Acrebach v. Meyer, 165 Mo. 685; Farra v. Quigley, 57 Mo. 284; Stivers v. Horn, 62 Mo. 473; Shindler v. Givens, 63 Mo. 394; Creath v. Dale, 69 Mo. 41; Stinson v. Call, 163 Mo. 323; Barton v. Walker, 165 Mo. 25; Payne v. Fraley, 165 Mo. 191. (2) Change in the form of pre-existing debts, by reducing notes to judgment, does not prejudice right of creditor to levy upon land as non-exempt as of original date of the liability. 21 Cyc. 512; 13 R. C. L. p. 602, sec. 65; Hollard v. Rongey, 168 Mo. 16; Jackson v. Boles, 67 Mo. 610; Berry v. Ewing, 91 Mo. 395; Robinson v. Leach, 27 L. R. A. 303; Sperry v. Cook, 247 Mo. 132. (3) The Missouri judgment rendered May 28, 1920, under which the property in question was sold to Standard Investment Company, was a valid judgment, and the cause of action upon which said judgment was rendered was at all times in existence. Dickson v. Patterson, 106 Kan. 794; Mangold v. Bason, 229 Mo. 459; McConnell v. Deal, 246 S.W. 604; Meierhoffer v. Kennedy, 265 S.W. 416; Miller v. Miller, 107 Kan. 505; Douglas v. Loftus, 85 Kan. 720; Atlantic Trust Co. v. Dana, 128 F. 209; McLain v. Parker, 88 Kan. 717; Kothman v. Skaggs, 29 Kan. 5; 34 C. J. p. 175, sec. 386; DeGonia v. Railroad, 224 Mo. 589. (4) Appellant had no homestead exemption rights in property in question prior to recording administrator's deed December 27, 1910. Sec. 5410, R. S. 1919; Elsea v. Smith, 273 Mo. 408; Jones v. Falls, 101 Mo.App. 536; Reynolds v. Hansen, 191 S.W. 1030. (5) Findings of fact and conclusions of law of the trial court supported by the law and the evidence. Carpenter v. Kendrick, 252 S.W. 646.

OPINION

White, J.

This suit was brought by the plaintiff to set aside a sale of certain real estate made by defendant Richardson as sheriff, at which sale the Standard Investment Company became the purchaser, and to cancel the sheriff's deed made in pursuance of said sale, on the ground that the real estate is exempt from execution as a homestead.

The real estate involved was formerly owned by one Martha Smith, the sister of the plaintiff, who died in April, 1909. It was sold by her administrator and conveyed to the plaintiff, who claims that it was his homestead before and after that date. Defendant Standard Investment Company contends that the sheriff's sale was under a judgment for a debt which accrued prior to the acquisition of the homestead and before the death of Martha Smith. The facts in relation to that matter in their chronoligical order are as follows:

In July, 1907, the plaintiff Crary executed two promissory notes, and in March, 1908, he executed two promissory notes. These four notes in regular course of business were transferred to the defendant Standard Investment Company.

In April, 1909, Martha Smith died in Kansas City, Kansas, having title to the lot in Kansas City, Missouri, which the plaintiff says is exempt. Immediately after the death of Martha Smith, the plaintiff, with his family, moved into her house in Kansas City, Kansas, where she had lived, and, on his application in Kansas, he was appointed administrator of her estate.

On the plaintiff's application, April 27, 1909, the Probate Court of Jackson County appointed one W. C. Tabb ancillary administrator in Missouri of the estate of Martha Smith. In due course the lot in question was sold by the administrator in Missouri, on the order of the probate court, to pay the debt of Martha Smith, deceased, and the plaintiff Crary became the purchaser at such sale, and December 6, 1910, a deed by the administrator was executed conveying the property to plaintiff.

In August, 1912, suit was brought by the Standard Investment Company in the District Court of Wyandotte County, Kansas, on the four notes mentioned above, against the plaintiff Crary, and in September, 1912, a personal judgment by default was rendered against him in that court for the amount of the four notes, aggregating then the sum of $ 1978.25. Whether Crary was a resident of Kansas at that time or not, is in dispute. The respondents claim that he was then a resident of Kansas, while the plaintiff claims he never lost his residence in Missouri.

February 28, 1920, the Standard Investment Company filed suit against the plaintiff in the Circuit Court of Jackson County, Missouri, on the judgment rendered in Kansas, and in May of that year recovered a judgment by default in the Missouri circuit court for the sum of $ 2877.80, being the amount of the Kansas judgment with interest. Thereafter in December, 1921, execution was issued upon such judgment, the property levied upon and sold, as stated, and bought in by the Standard Investment Company for the sum of $ 2500. The sheriff's deed was made to it as purchaser. This is the sale and deed which plaintiff seeks to set aside.

The defendant, Standard Investment Company, claims that the property was subject to execution because the debt accrued in 1907 and 1908, while the deed by which Crary obtained title was filed for record in 1910, two or three years later.

The plaintiff Crary contends that his property is exempt as a homestead, as against the execution in this case, because the Kansas judgment on which the Missouri judgment was obtained, was extinct at the time suit was brought on it and therefore the "cause of action," which is the basis of the judgment in Missouri, did not exist, though the judgment was obtained upon it by default. Crary claims further that he acquired the homestead as a gift from his sister in 1905, before the notes were executed; that he lived on the property and maintained his home there from that time on.

I. It seems to be conceded that a change in the form of the debt which must antedate the acquisition of the homestead, in order to exclude exemption, makes no difference, and that the date of the execution of the notes, on which the original judgment was rendered, is the date of the accrual of the cause of action herein, unless, as the defendant claims, the continuity was broken by the...