Creech v. Childers

• Decision Date: 21 May 1900
• Citation: 56 S.W. 1106,156 Mo. 338
• Parties: CREECH v. CHILDERS et al.
• Court: Missouri Supreme Court

56 S.W. 1106

156 Mo. 338

CREECH v. CHILDERS et al.

Supreme Court of Missouri, Division No. 1.

May 21, 1900.

HOMESTEAD — EXEMPTION FROM JUDICIAL SALE — EXCESS — EJECTMENT — TITLE.

1. The purchaser of a portion of a homestead levied on and sold during the lifetime of the owner under an execution based on a general judgment against him obtains no title by virtue of such sale.

2. Where a judgment debtor is not notified of his homestead rights by the sheriff before the sale under an execution, and is given no opportunity of selecting the part he would retain as a homestead, and no part is set off to him by commissioners appointed by the sheriff, as required by Rev. St. § 2690, a levy and sale of an excess from the homestead is void, and conveys no title.

3. In ejectment plaintiff must recover on the strength of his title, and not on the weakness or want of title of defendant.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Ejectment by Josiah Creech against Nellie Childers and Henry F. Childers. There was judgment for defendants, and plaintiff appeals. Affirmed.

Martin & Woolfolk, for appellant. Norton, Avery & Young, for respondents.

MARSHALL, J.

Ejectment to recover lots 25 and 26 in the city of Troy. The petition is in the common form, and the answer is a general denial. The trial in the circuit court was before the court sitting as a jury. No instructions were asked or given. The judgment was for the defendants, and the plaintiff appealed.

The facts are these: Mr. Vertrees (Christian name not given) died in 1865, leaving a widow, Mary, and four children by a former marriage, to wit, Isaac, Louis, Maggie, and Campbell. At the time of his death he occupied the land in question with lots 51 and 52 as a homestead. The mansion house stood on lot 51, a building containing a carding machine stood on lot 52, and lots 25 and 26 were used as an orchard and pasture. The legal title to the whole was, however, in Mrs. Mary F. Vertrees, under a deed from Benedict Crump, dated January 17, 1859. After Mr. Vertrees' death, the widow and children continued to occupy the land as a homestead until 1872, when Mrs. Vertrees died, and by her will devised the whole property to Louis Vertrees. Mrs. Vertrees left debts, however; so, on proper application of her administrator, the probate court ordered the land to be sold to pay the debts of the estate, and at that sale on January 13, 1875, Louis Vertrees became the purchaser, and received a deed. So that it is a fact, and so conceded, in this case, that Louis Vertrees is the common source of title. Thereafter Louis continued to live on the place, and took care of and supported his brother Campbell and his sister, Maggie, who also lived on the place with him. Louis married Nellie McKay on the 17th of May, 1880. Louis became indebted to Maggie at some time not disclosed by the record; whether before or after he acquired the land and began to use it as a homestead is not apparent from the record; but on the 6th of April, 1881, Maggie...