Dennis v. Gorman
| Decision Date | 03 June 1921 |
| Docket Number | No. 22139.,22139. |
| Citation | 233 S.W. 50,289 Mo. 1 |
| Parties | DENNIS et al. v. GORMAN. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.
Suit by Allie Dennis and others against W. H. Gorman. From a judgment for defendant, plaintiffs appeal. Affirmed in part, and reversed and remanded in part, with directions.
George W. Goad, of Springfield, for appellants.
Lamar & Lamar, of Houston, and J. W. Jackson, of Hartville, for respondent.
I. Suit to quiet title to 95 acres of land in said county. The petition is in the regular form to quiet title at law; it also contains a second count in ejectment.
The answer, besides a general denial, after admitting possession and claim of ownership, sets up that defendant purchased the property at a sale made by the administratrix of the estate of George Manear at the February term, 1913, of the probate court of said county, to pay the debts of the deceased, under due and regular orders and proceedings, after due notice to all parties interested in said estate, including plaintiffs, who were personally served with notice of such proceedings by the sheriff, as required by law; that at such sale the defendant was the highest and best bidder, and purchased the property for $880, which he paid to the administratrix, and received a regular administratrix's deed therefor; that said sale was duly confirmed, and is binding upon the plaintiffs as res adjudicata, and the orders and judgment of said court are pleaded in bar of all claims of the plaintiffs. It is further alleged, by way of estoppel, that the said estate received the benefit of the money paid by defendant, and defendant afterwards took possession and made valuable improvements upon said land with the knowledge and consent of plaintiffs.
The reply put the allegations of the answer in issue.
There is substantially no dispute as to the salient facts. The plaintiffs Allie Dennis and Marie Hearold are the children, and the minor plaintiff, Leon England, is the grandchild, and they constitute the only heirs of George Manear, who died October 15, 1907. At and a number of years before his death he was the owner of the land and occupied it with his family as a homestead. It did not exceed $1,500 in value. His family, when he died, consisted of the plaintiffs and his wife, Laura Manear. The widow was appointed administratrix in 1908, but, she failing and refusing to apply for and procure an order of sale to pay debts proved up against the estate, the creditors filed such petition, and after the order of sale was made, in 1911, and renewed for several terms, the property was sold at the February term, 1913, and defendant became the purchaser. The proceedings were all regular, in the usual form for the sale of real estate of the deceased to pay his debts. The plaintiffs did not appear at any stage of the proceedings or take any notice thereof. The debts for which the land was sold were not charged against it in the lifetime of the decedent, and were not contracted before the homestead was acquired. About a year before the sale, or in 1912, the widow and two daughters and granddaughter, who up to that time continued to reside on the homestead, removed to Springfield, Mo., where they resided at the time of the sale. The children and grandchild received none of the proceeds of the sale, so far as shown by the evidence, and had no knowledge of its occurrence. But $250 of such proceeds was paid "back on the land" by the administratrix. Just before the sale, the widow by quitclaim deed dated April 8, 1913, sold and conveyed all her interest in the property to the defendant for $1,160. At the time of their father's death one of his daughters was 22 years of age, the other 16, and said grandchild was an infant of tender years, and was a minor when this suit was brought. The widow, in testifying, said her name was Laura Hendricks at the time she testified.
The lower court found the issues for the defendant on both counts of the petition, and, refusing a new trial, the plaintiffs brought the case here by appeal.
The principal question on this appeal submitted by counsel on both sides is whether, on the foregoing facts, the said administratrix's sale was absolutely void and subject to collateral attack. There are some minor questions also which will be noticed in the opinion.
II. Our homestead laws create an estate unknown to the common law. It is a special statutory estate, not governed by the general laws of descent and distribution. The purpose of such legislation was to afford a safe harbor and anchorage for a man and his wife and children against financial stress and storm, and is accordingly to be liberally construed in their favor and against creditors to promote its beneficent purpose. Balance v. Gordon, 247 Mo. loc. cit. 124, 152 S. W. 358.
The law in this state was first enacted in 1862 (Laws 1862-63, p. 22), and changed from time to time since its first enactment. The various statutes and the history of the stead Act have been so repeatedly set out in the decisions of this court that it is sufficient for us to refer to the statutes on the subject directly bearing upon and governing this case. Section 2 of the Homestead Act of 1895 (Acts 1895, p. 185), being afterwards incorporated in a. S. 1899 as section 3620, was as follows:
"If any such housekeeper or head of a family shall die leaving a widow or any minor children his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the, payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow: that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband: and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto." R. S. 1889, § 5439, amended Laws 1895, p. 185—c."
Said section 3620, R. S. 1899, was subsequently changed by the act of 1907 (Acts of 1907, p. 301), afterwards section 6708, R. S. 1909, by making the joint right of occupancy of the widow and children continue until all the children were 21 years of age, and expressly authorizing sale of the homestead for the general debts of the decedent in cases where his heirs "be persons other than his children," by adding to the law of 1895 the following:
It is firmly established that the rights of the widow and children and the creditors are fixed and determined by the law in force when the husband dies. Bushnell v. Loomis, 234 Mo. 384, 385, 137 S. W. 257, 36 L. R. A. (N. S.) 1029; Balance v. Gordon, 247 Mo. 131, 152 S. W. 358.
So that George Manear, having died October 15, 1907, the act of 1907 was then in force, and the rights of the parties hereto must be determined by that act, or said section 6708, R. S. 1909. Under the said section 3620, R. S. 1899, it has been uniformly held that the probate court has no power to sell the homestead for the debts of the deceased, because the statute prohibited such sale and vested the title in the widow and children and heirs free from the claims of creditors of the deceased, and, in effect, holding that the homestead is no part of the decedent's estate, and is not subject to the jurisdiction of the probate court in administering his estate. Broyles v. Cox, 153 Mo. 242, 54 S. W. 488, 77 Am. St. Rep. 714; In re Powell's Estate, 157 Mo. 156, 57 S. W. 717; Balance v. Gordon, 247 Mo. 127, 152 S. W. 358; Armor v. Lewis, 252 Mo. 574, 161 S. W. 251; Ehlers v. Potter, 219 S. W. 913; In re Boward's Estate, Div. No. 2, 231 S. W. 600, decided April term, 1921, not yet [officially] reported.
It is true that the question did not arise collaterally in all the above cases, but it did arise collaterally in Balance v. Gordon, 247 Mo. 119, 152 S. W. 358, and Armor v. Lewis, 252 Mo. 568, 161 S. W. 251, and the point was urged by counsel, as shown by their briefs in the Armor Case, that, if the probate court had jurisdiction over the subject-matter and the parties its judgment ordering the sale could not be absolutely void and subject to collateral attack. But the court necessarily ruled that the said court had no such jurisdiction to sell the homestead, which was the subject-matter of its action.
In the Armor Case, supra, 252 Mo. loc. cit. 582, 161 S. W. 254, the court, per Lamm, C. 5'., said:
"It must be taken as assumed that it could not be contended for a moment that the probate court had any jurisdiction to order the sale of the homestead in contravention of the homestead statute."
And on page 576 of 252 Mo., on page 252 of 161 S. W., the learned Judge observed:
All of which cases held the probate courts had no power to sell the homestead for debts of decedent.
This court very...
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