Daniels v. Peck

• Citation: 288 S.W. 84
• Decision Date: 08 November 1926
• Docket Number: No. 15769.,15769.
• Parties: DANIELS v. PECK at al.
• Court: Court of Appeal of Missouri (US)

288 S.W. 84

DANIELS v. PECK at al.

No. 15769.

Kansas City Court of Appeals. Missouri.

November 8, 1926.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

Proceeding by G. W. Daniels against W. Peck and another, to subject the excess in defendant's homestead to payment of judgment held by plaintiff. From a judgment for plaintiff, defendants appeal. Affirmed.

Frazier & Mullins, of Rockport, for appellants.

John A. Gerlash, of Tarkio, for respondent.

BLAND, J.

This is a proceeding under R. S. 1919, c. 44, § 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 $1,500 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 $1,856.56; 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 $1,500. 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 $3,550; 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, R. S. 1919, setting up the facts.

It is stipulated between the parties that the record establishes the truth of all the facts heretofore set out and —

"* * * that the defendants, at the time of the filing of said application or motion, had no property, other than the property hereinbefore described, upon which said execution might be levied, and that the evidence showed that each and every step required to be taken under chapter 44 of the Revised Statutes of the state of Missouri, 1919, and each and every section thereof in an effort to procure an order of sale of said homestead of the defendant, J. W. Peck, have been regularly and fully taken, and that the proceedings herein are in all things regular and in accordance with the law in such cases made and provided."

The sole question presented in this appeal is whether section 5863, R. S. 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.

Defendants contend that this section of the statute has application only where "several parties have a vested interest in lands" and the homestead of the widow therein cannot be severed and set out without great prejudice and loss to all concerned; that, by reason of the provisions of the Homestead Act (section 5853, R. S. 1919), "The head of a family is guaranteed a homestead which shall consist of land, and section 5854 provides such homestead shall be set out in land which such head of a family shall own"; that "no court has any authority to order the sale of lands including a homestead and requiring the homestead claimant to accept therefor the sum of $1,500 cash instead of the land which the statutes of this state guarantee to him. No surplus above the homestead is available for creditors until the homestead is determined and set off, and, if this cannot be done, the creditors must wait until the homestead right is ended and no longer exists."

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. Wrinkle, 16 Mo. App. 115; Fenwick v. Wheatley, 23 Mo. App. 641, 643. See, also, Schlup v. Thrasher, 207 Mo. App. 646, 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, 129 Am. St. Rep. 547, 16 Ann. Cas. 598; Growney v....