Daniels v. Peck
Decision Date | 08 November 1926 |
Citation | 288 S.W. 84,221 Mo.App. 877 |
Parties | G. W. DANIELS, RESPONDENT, v. J. W. PECK AND ANNIE PECK, APPELLANTS. [*] |
Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Atchison County.--Hon. John M Dawson, Judge.
AFFIRMED.
Judgment affirmed.
John A Gerlash for respondent.
J. W Peck for appellants.
Trimble, P. J., absent.
This is a proceeding under Chapter 44, Revised Statutes 1919, section 5863, concerning homesteads and is to subject the excess in defendant's homestead to the payment of a judgment obtained by plaintiff against the defendants. The court after making the proper finding of facts ordered the property sold, decreed that of the proceeds therefrom $ 1500 be first paid to the defendants; that next plaintiff's judgment and costs be paid, and that the balance of the proceeds that might be left be paid to the defendants. Defendants have appealed.
The facts show that on August 21, 1925, plaintiff obtained a judgment against the defendants, who are husband and wife, in the sum of $ 1856.56; that on September 9, 1925, a general execution was issued upon the judgment and the sheriff levied upon the house and lots owned and occupied as a home by the defendants in the town of Westboro, a village of 450 inhabitants. Under the homestead act defendants were entitled to a homestead of the value of $ 1500. After proceedings were had by the sheriff as required by law, appraisers were appointed and they found that the property levied upon was of the value of $ 3550; that the lots were used in connection with the residence and outbuildings located thereon; that "a severance of the homestead would greatly depreciate the value of the residue of the premises and would be of great inconvenience to the parties interested either in such residue or in such homestead;" and that the homestead could not be occupied in severalty without great inconvenience to such parties. The sheriff did not sell the property but reported the facts in his return. Thereupon plaintiff filed in the circuit court his application to sell the real estate herein involved in accordance with section 5863, Revised Statutes 1919, setting up the facts.
The sole question presented in this appeal is whether section 5863, Revised Statutes 1919, applies to a case of this kind, it being substantially conceded by the defendants that if it does, then the judgment of the court was right.
We think there is no merit in this contention. It has long been assumed in this State that the excess in a homestead may be subjected to the payment of the debts of the homestead claimant. [Schaeffer v. Beldsmeier, 9 Mo.App. 438; Straat v. Rinkle, 16 Mo.App. 115; Fenwick v Wheatley, 23 Mo.App. 641, 643; see, also, Schlup v. Thrasher, 229 S.W. 1094.] A judgment against one occupying lands of quantity and value in excess of his homestead exemption, becomes a lien on the excess from the date of the rendition of the judgment. [Childers v. Pickenpaugh, 219 Mo. 376, 118 S.W. 453; White v. Spencer, 217 Mo. 242, 117 S.W. 20; Growney v. O'Donnell, 198 S.W. 863, 867.] If defendants' contention were upheld, it would result in many instances in the holder of the judgment not being able to realize anything thereon during his lifetime, with the burden upon him of keeping the judgment lien alive for his heirs. It would permit the judgment debtor to invest his assets in a home of the value of ten times or more the amount of his homestead exemption and retain and enjoy the benefits of the excess at the expense of his creditors thereafter acquired. In the absence of something in the statute clearly evidencing an intention on the part of the Legislature to permit such an unusual condition to exist, we must rule defendants' contention against them. There is nothing in the Homestead Act indicating any such...
To continue reading
Request your trial- Graff v. Continental Auto Ins. Underwriters, Springfield, Ill.
-
Hyde v. Copeland
... ... Daniels v. Peck, 221 Mo.App. 877, 288 S.W ... 84. This is a drastic remedy, and, in view of the ... often-announced policy of our courts to liberally ... ...
-
Ebert v. Myers
...and proper. Sec. 5863, R.S. 1919; Fenwick v. Wheatley, 23 Mo. 643; Straat v. Rinkle, 16 Mo. App. 117; Beckner v. Rule, 91 Mo. 63; Daniels v. Peck, 288 S.W. 85. WHITE, The plaintiff brought this suit to set aside a conveyance by Ns Myers to his daughter. Olivia Myers, as in fraud of creditor......
-
Oldham v. Wright
... ... the creation of plaintiff's debt. [See Secs. 615, 616 and ... 618, R. S. 1929; [337 Mo. 176] see, also, Daniels v ... Peck, 221 Mo.App. 877, 288 S.W. 84; Poplar Bluff ... Trust Co. v. Bates, 224 Mo.App. 636, 31 S.W.2d 93.] If ... defendants desire to so ... ...