D. M. Osborne & Co. v. Evans

• Decision Date: 24 December 1904
• Court: Missouri Supreme Court
• Parties: D. M. OSBORNE & CO. v. EVANS et al.

84 S.W. 867

185 Mo. 509

D. M. OSBORNE & CO. v. EVANS et al.

Supreme Court of Missouri, Division No. 2.

December 24, 1904.

HOMESTEAD — SALE—INVESTMENT OF PROCEEDS —OTHER PROPERTY — EXEMPTION — HUSBAND AND WIFE—CONVEYANCE TO WIFE—FRAUD— LIABILITY FOR HUSBAND'S DEBTS.

1. Rev. St. 1899. § 3623, provides that when the head of a family shall acquire another homestead the former homestead shall be liable for his debts, but the new homestead shall not be liable for causes of action against him to which the prior homestead would not be liable, provided that such other homestead shall have been acquired with the consideration derived from the sale or other disposition of the prior homestead. Held, that on the sale of a homestead the exemption under such statute was limited to another homestead acquired with the proceeds of the old homestead, and hence, where defendant exchanged his homestead for wild land, located in another state, and thereafter exchanged such land for land in controversy in Missouri, which he procured to be conveyed to his wife, but neither he nor his family ever occupied the wild land or the land in controversy as a homestead, such latter land was not exempt as homestead.

2. The husband having procured the land in controversy to be deeded to his wife without any valuable or adequate consideration moving from her, it was liable in equity for his debts.

Error to Circuit Court, Barry County; H. C. Pepper, Judge.

Suit by D. M. Osborne & Co. against Elizabeth Evans and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

W. Cloud and R. H. Davis, for plaintiffs in error. L. Beasley and O. T. Hamlin, for defendant in error.

GANTT, P. J.

This is an appeal from a decree of the circuit court of Barry county setting aside a certain conveyance of lands in said county to defendant Elizabeth Evans, on the ground that the same was in fraud of the creditors of her husband and codefendant, Martin Evans, and subjecting the same to the payment of plaintiff's demand against said husband. The petition, it is agreed, stated, in substance, that Martin Evans, one of the defendants herein, was indebted to plaintiff in a large sum of money on a certain promissory note given for a reaping machine on or about the 14th day of November, 1894; that on the 17th of October, 1899, said Martin Evans purchased of one Frank Ball the real estate involved in this suit, lying and being in Barry county, and caused the title to the same to be placed in the name of his wife and codefendant, Elizabeth Evans, for the purpose of covering up and concealing his said property, and to hinder, delay and defraud his creditors in the collection of their debts; that said Martin paid the whole of the consideration for said lands, and that said consideration was not the proceeds of a former homestead, etc. The answer is as follows:

"Now on this day come defendants, and for answer to plaintiff's petition deny each and every allegation therein contained, except what is herein specifically admitted. Defendants, further answering, state that on the 14th day of November, 1894, and for a long time prior thereto, defendant Martin Evans was a married man, and the head of a family, and was on said 14th day of November, 1894, and for a number of years prior thereto, the owner of, seised and possessed of eighty acres of land situated in the county of Newton and state of Missouri, which he used and occupied as his homestead with his family; that said land was less than fifteen hundred dollars in value; and that the deed therefor was in the name of defendant Martin Evans, and was duly filed and recorded in the office of the recorder of deeds in and for said county of Newton some years prior to the said 14th day of November, 1894. Defendants further state that the said Martin Evans and wife, by their certain deed of conveyance, on the ____ day of ____, 1898, conveyed said Newton county lands to one Wm. Meredith, receiving in exchange therefor and in payment thereof eighty acres of land in the county of Johnson, in the state of Arkansas, of less value than fifteen hundred dollars, the deed therefor being taken in the name of defendant Martin Evans; that said Martin Evans continued to own said Arkansas land until the 17th day of October, 1899, when he conveyed the same by deed, duly executed by himself and wife, to one Ball, and received in exchange therefor and in payment thereof the lands described in plaintiff's petition herein; that defendant Martin Evans caused the lands in controversy to be conveyed to his codefendant, Elizabeth J. Evans, which deed was signed, executed, and delivered to her by said Ball on the 17th day of October, 1899, at the request of defendant Martin Evans. Defendants are now, and were at all of the times herein mentioned, husband and wife. Defendants further state that they were resident of and resided in the state of Missouri at all of the times above mentioned, and continued to reside in the state of Missouri until the ____ day of December, 1899. Defendants further state that Martin Evans became indebted to plaintiff on the 14th day of November, 1894, for the purchase price of a reaping machine sold to him on said date by plaintiff, as is evidenced by his certain promissory note filed in the attachment suit of D. M. Osborne & Co. as plaintiff against Martin Evans, defendant, in the circuit court of Barry county, Missouri, returnable to the April term, 1900, of said court. Wherefore defendants pray the court that they may go hence without day, and for their costs herein laid out and expended."

The replication was a denial of all new matter alleged in the answer. The cause was submitted to the circuit court upon the following agreed statement of facts:

"In the Circuit Court of Barry County, Missouri, September Term, 1901. D. M. Osborne & Co. vs. Elizabeth J. Evans and Martin Evans. For the purpose of avoiding the bringing of witnesses to court, it is hereby agreed that the facts involved in the litigation in the above-entitled cause of action are as follows: "(1) That on the 14th day of November, 1894, and for a long time prior thereto, defendant Martin Evans was a married man, and the head of a family, and was on said 14th day of November, 1894, and for years prior thereto, the...