Ehlers v. Potter

• Decision Date: 02 March 1920
• Docket Number: No. 20212.,20212.
• Citation: 219 S.W. 915
• Parties: EHLERS et al. v. POTTER et al.
• Court: Missouri Supreme Court

219 S.W. 915

EHLERS et al. v. POTTER et al.

No. 20212.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Morgan County; J. G. Slate, Judge.

Suit by Rudolph Ehlers and others against James E. Potter and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

John Cosgrove, of Boonville, for appellants.

A. L. Ross, of Versailles, and Capron, Butcher & Knoop, of Kansas City, for respondents.

BROWN, C.

The following statement by appellant fairly outlines the facts:

"This suit was commenced in the circuit court of Morgan county at the August term, 1915, to quiet the title of the land described in the petition in the plaintiffs, who are children of Anton E. Ehlers, deceased, against the heirs of Jabez H. Potter, deceased.

"Jabez H. Potter left a will, which was duly probated in the probate court of Morgan county, wherein he named as his executors Jabez H. Potter, Jr., and James E. Potter. The executors answered separately and all the other defendants, including executors, joined in a separate answer.

"Plaintiffs sought to quiet the title in them to all the land described in the sheriff's deed, but they subsequently disclaimed any interest in any land except that described in the decree, to wit, 182 acres. The excess land described in the deed appears not to have been the land of Anton E. Ehlers.

"The children of Anton E. Ehlers were all over age. His wife died several years before he died.

"Jabez H. Potter, in his lifetime, instituted two suits on notes executed by Anton E. Ehlers to said Potter, and recovered two judgments on said notes on the 19th day of July, 1897; one for $159.26, debt, damages, and costs, and the other for $384.64, debt, damage, and cost. Judgment was rendered before a justice of the peace in the township where defendant resided. Transcripts of said judgments were filed in the office of the clerk of the circuit court of Morgan county on the 4th day of August, 1897. Separate executions were issued on each of said judgments by the clerk of said court and placed in the hands of the sheriff of Morgan county on the 14th or 15th of November, 1899. The sheriff advertised and sold 222 acres of land, which was 40 acres in excess of the land claimed by plaintiffs. Mr. Jabez H. Potter made no effort to dispossess Mr. Ehlers, the defendant in the judgment. Said Ehlers, after Potter purchased said land, to wit, in October, 1903, acknowledged that he had received $16 from Potter to buy shingles to repair barn on the farm. In the letter he further, acknowledged that Mr. Potter had purchased the land `subject to homestead and also subject to Morgan county deed of trust, that I gave Morgan county for $500.' Also J. H. Potter paid for apple trees $9.51. In March 1901, Ehlers also wrote Mr. Potter recognizing the existence of Mr. Potter's ownership of said land. In March, 1901, he wrote another letter in which he asked Mr. Potter to join in helping to keep the building in repair: In 1913 (Defendants' Exhibit 5), said Ehlers wrote Mr. Potter asking him where to get shingles to put on the building on said premises. Mr. Potter, complying with Ehlers' request, furnished him with $42.90, as shown by Defendants' Exhibit 2.

"Daniel E. Wray, a member of the Morgan county bar, testified that Mr. Ehlers stated to him that Mr. Jabez H. Potter had purchased `the land' subject to his homestead, and that he (Eiders) was to pay the taxes and the interest on the debt owing to Morgan county, and that at Ehlers' death the property was to be Mr. Potter's. Mr. Wray also testified that the land was worth $15 at the time he saw it.

"Defendants asked declarations of law, which the court refused, but said declarations are not printed in the record, as the answer sets up an equitable defense. The case was submitted to the court and decree was rendered for the plaintiffs. The proper steps were taken, and the case was brought here by appeal."

We will, should it be necessary, refer more particularly to undisputed facts referred to in this statement.

1. The substantial question presented by the record relates to the validity of the sheriff's deed referred to in the foregoing statement. It is dated December 13, 1899, and purports to convey 222 acres of land in Morgan county, and purports to have been made pursuant to a sale under two executions issued upon transcripts of two judgments against Anton E. Ehlers, aggregating five hundred and odd dollars, rendered by a justice of the peace of said county in 1897. It recites a levy upon the interest of said Ehlers in said land subject to a mortgage of $500 to Morgan county, and subject also "to whatever homestead right said Ehlers may have in said land"; that he, the said sheriff, exposed for sale—

"all the right, title, interest, and estate of the sale Anton E. Ehlers of, in, and to the above-described real estate levied upon as aforesaid, and J. H. Potter being the highest and best bidder for said real estate, at the price and sum of twenty-five and no/100 dollars, the same was stricken off and sold to the said J. H. Potter for that sum."

It is admitted that the homestead of Ehlers was and had been for many years situated upon the 182 acres of land involved in this suit, and that it was at the time the judgments were rendered worth $15 per acre. It was also admitted that the remainder of the land sold did not belong to Ehlers.

It will be seen that the rights of the respective parties to this suit depend upon the question whether the sheriff, under his execution, had the power to sell the interest of the judgment defendant subject to the homestead right, and without setting it off to him as provided by the homestead act in force at the time. R. S. 1909, §§ 6704, 6705, and 6706. The plaintiffs are heirs and devisees of Anton a Ehlers, who died in October, 1914, and are seeking in this suit to try their title as against the defendants, who are heirs of J. H. Potter, deceased, claiming through the sheriff's deed.

In Armor v. Lewis, 252 Mo. 568, 161 S. W. 251, this court, in banc, had before it the question whether the probate court for Crawford county had jurisdiction, under the homestead law of 1895, to order the sale of lands of a decedent for the payment of his debts subject to the right of homestead of which he died seized, and which had, under the act, become vested in his widow, and we held that it did not and that no title passed by an administrator's sale made in pursuance of such order. The court held, after an exhaustive review of the provisions of the act, as well as all of the decisions of this court cited as having any bearing upon the question, that the sale was void.

Among the decisions so cited, reviewed, and approved was Balance v. Gordon, 247 Mo. 119, 152 S. W. 358, in which we held, in Division No. 1, that under the homestead act of 1895, the probate court was without power to order a sale of the remainder in the homestead of the widow and children for the payment of the decedent's debt. In Brewington v. Brewington, 211 Mo. 48, 109 S. W. 723, also cited and reviewed in the Armor Case, supra, we held that the remainder in the homestead estate could not be sold in partition, and this was approved by the court, In bank, in Dalton v. Simpson, 270 Mo. 287, 193 S. W. 546.

This conclusion is so thoroughly discussed in the cases to which we have referred, and is so firmly established in all its features, that it would ordinarily require no further elucidation. If a court, proceeding in a matter plainly within the line of its jurisdiction, is, as these cases hold, powerless to subject the residuum of this estate to the payment of its judgment or to sell it for distribution among remaindermen, we would take it for granted that it could not be done by an executive officer of the court upon his own initiative, but for the fact that in the later case of Fields v. Jacobi, 181 S. W. 65, we said, referring to the three cases above cited:

"The foregoing cases mainly relate to attempted forced sales of the homestead under execution, or under orders of probate courts for the payment of debts, etc. If, however, they are inconsistent with the conclusions reached herein, they ought not to be longer followed."

It is unnecessary to mention the question involved in that case otherwise than to say that it had no relation whatever to either judicial sales or execution sales made to satisfy judgments; but fearing that it might be construed to question the authority of Armor v. Lewis, supra, two of the judges of division concurred in the opinion as follows:

"I concur in the entire opinion, except as to that portion which undertakes to overrule the case of Armor v. Lewis, 252 Mo. 568 ."

In view of this expression, as well as the concurrence of another one of our judges in the Jacobi Case on the grounds stated in the dissenting opinion in the Armor-Lewis Case, we think it proper to notice the principle underlying our decision in the case last mentioned in its peculiar application to the facts in this case.

We there held that the homestead act of 1895, as well as those which preceded it, was sui generis, covering the entire ground indicated by its title, including the subjection of the land on which the homestead is situated to the payment of the debts...