Davis v. Land

• Decision Date: 31 October 1885
• Citation: 88 Mo. 436
• Parties: DAVIS v. LAND et al., Appellants.
• Court: Missouri Supreme Court

88 Mo. 436

DAVIS

v.LAND et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Barton Circuit Court.--HON. CHARLES G. BURTON, Judge.

REVERSED.

Harding & Buller for appellants.

(1) Phillips was entitled to hold the lot in controversy as his homestead at the time of the attachment. Acts 1870, p. 16, sec. 1; Hartwell v. McDonald, 69 Ill. 297. (2) A homestead is not the subject of a fraudulent conveyance. Vogler v. Montgomery, 54 Mo. 383; State ex rel. Meinzer v. Diveling, 66 Mo. 375; Beck v. Ashbrook, 59 Mo. 200; Boggs v. Thompson, 13 Neb. 303; Aultman v. Rainey, 59 Iowa, 654; Smith v. Rumsey, 33 Mich. 183; Dawe v. Hurley, 78 Ky. 266; Cox v. Wilder, 2 Dill. C. C. 46. (3) A conveyance of exempt property, even with intent to defraud is not fraudulent. O'Connor v. Ward, 60 Miss. 125; Delashment v. Trim, 44 Iowa, 613; Winchester v. Gaddy, 72 N. C. 115. (4) A gift or sale of property exempt from attachment or execution to a stranger or to the debtor's wife cannot be a fraud upon creditors. Allen v. Berry, 56 Wis. 178.

Robinson & Harkless and Wm. Thompson for respondent.

(1) The evidence shows that one of the grounds alleged in the affidavit for attachment was that defendants were about to move out of the state with intent to change their domicile; and this was sustained on plea in abatement upon trial had, and how the defendants can strain themselves out of this we are unable to see. State ex rel. Schnerr v. Lais, 46 Mo. 108; 1 W. S., p. 185, sec. 19; Ib. p. 697, sec. 1. (2) There can be no homestead claim for another reason. The testimony shows that Davis' cause of action accrued on November 11, 1875, and there is no claim that Phillips ever lived on the land or claimed it as a homestead until 1879; or that Phillips even owned the land at that time, or if he did that he ever had his deed on record. 1 W. S., p. 698, sec. 7. (3) The court has made a finding upon the facts as to the dismissal being fraudulent and without authority, and that Baker had full knowledge of the fraud and purchased with notice, and the evidence fully sustains it; and the cause should be affirmed.

HENRY, C. J.

This is a suit in ejectment to recover possession of lot 27 in James' addition to the town of Carthage. On his application Dermott was made a defendant, Land being in possession of the premises as his tenant. Their answer is a general denial. The cause was taken to the Barton circuit on a change of venue, and on a trial thereof plaintiff obtained a judgment from which defendants have appealed. Plaintiff claims title under attachment proceedings against Thomas Phillips, to whom the lot was conveyed by deed by one Maher, August 15, 1875, which was recorded on the nineteenth of the same month and year. Plaintiff's cause of action in the attachment suit accrued on the eleventh of November, 1875. When the attachment suit was instituted, but not when plaintiff's cause of action accrued, Phillips was living with his family on the premises and remained there until 1879. He had, however, sold it to Baker, his father-in-law, in 1877.

The grounds alleged for the attachment were that defendant Phillips had fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors, and was about to remove out of the state to change his domicile. The property in question was Phillip's homestead, which he acquired before plaintiff's cause of action accrued; and by the statute, section 2695, that was acquired when he filed his...