Elliot v. Thomas
| Decision Date | 05 February 1912 |
| Citation | 143 S.W. 563,161 Mo.App. 411 |
| Parties | H. H. ELLIOT, Appellant, v. MARY J. THOMAS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Carr McNatt, Judge.
REVERSED.
Judgment reversed.
H. H Bloss for appellant.
(1) The word housekeeper and the word "head of family" are used interchangeably by the statute, so as to secure a broad construction of the statement in favor of any one who has dependent persons living with him. Uppenheimer v Meyers, 99 Va. 582, 39 S.E. 218; 12 Am. and Eng. Ency. Law (2 Ed.), 89; Ridenour Co. v. Monroe, 142 Mo 165. (2) The standard dictionaries of the English language define a housekeeper to be "the master or head of a family." Webster's International Dictionary, 720; 2 Universal Dictionary, 2547; American Dictionary, 503. (3) The only instance were one person is entitled to retain a homestead as exempt under the laws of Missouri, is where by reason of joint occupancy the land has assumed and been vested with the character of a homestead, when it shall be treated as such by the courts in favor of the widow until her death or remarriage, or in favor of a child, until the child arrives at majority; this is done by reason of the statute, even where death has reduced the family to one individual. R. S. 1909, sec. 6708; Biffle v. Bullman, 114 Mo. 50; Holmes v. Nichols, 93 Mo.App. 513; Beckman v. Meyer, 75 Mo. 333. (4) Outside of the exception noted by the statute under point two, either a legal or moral dependency of one person on the other is a necessary condition to entitle the housekeeper or head of a family to invoke the Homestead Law. In this case there is no dependency whatever. R. S. 1909, sec. 6704; Ridenour Co. v. Monroe, 142 Mo. 165; Harbison v. Vaughn, 42 Ark. 539; Boskett v. Hall, 90 Ky. 566; Mullins v. Leeke, 27 S.W. 926; Spangler v. Kaufman, 46 Mo.App. 644. (5) A single person with no one depending on him for support, is only entitled to the exemptions mentioned in the following statute. R. S. 1909, sec. 2179; Rock v. Haas, 110 Ill. 528; Holneck v. Wilson, 159 Ill. 148; Wilson v. Cochran, 31 Tex. 677, 98 Am. Dec. 553.
William B. Skinner for respondent.
(1) A "housekeeper" is one who occupies the house. In order to make the party a housekeeper he must be in actual possession of the house. Bouvier's Law Dictionary (14 Ed.), 674; Lester v. State, 2 Tex.App. 438. (2) Long before the adoption of our homestead act our Supreme Court had defined the words "head of family" to be one who controls, supervises and manages the affairs about the house, not necessarily a father or a husband. Nor is it essential that such an one should be under any legal obligation to support other members of the family who live with him. Ridenour Co. v. Monroe, 142 Mo. 170; Wade v. Jones, 20 Mo. 76; State to use v. Kane, 42 Mo.App. 255. Nor is it essential that the members to constitute a family, should live in one house. Duncan v. Frank, 8 Mo.App. 289; Spengler v. Kauffman, 43 Mo.App. 14. (3) The term "head of family" does not necessarily mean the same thing under all circumstances and in all connections. Linton v. Crosby, 56 Iowa 386. The term as used in our homestead act and in our execution act, is construed to have a different meaning, and this because of the connection in which it is used and the difference in the phraseology of the two statutes. While in the latter instance it implies and is limited to a relation of status in the former it may imply and does include a relation created by contract, so that an individual is entitled to the benefit of the former when not included within the purview of the latter. Murdock v. Dalby, 13 Mo.App. 46; State to use v. Kane, 42 Mo.App. 255; Spengler v. Kaufman, 43 Mo.App. 14; Leake v. King, 85 Mo. 416; Brown v. Brown, 68 Mo. 388; Whitehead v. Tapp, 69 Mo. 415; Beckman v. Meyer, 75 Mo. 333; Fore v. Hoke, 48 Mo.App. 261. (4) The term "householder" is a broader and more conprehensive term than the term "head of a family" as used in legal parlance, and if possible, the term "housekeeper" is still more general and comprehensive in its scope. Graham v. Crocket, 18 Ind. 120; Greenwood v. Maddox, 27 Ark. 648; Myers v. Ford, 22 Wis. 139, 4 L. N.S. 380; Kelley v. McFadden, 80 Ind. 539; Lane v. State, 29 Tex.App. 319, 15 S.W. 829; Van Vetchen v. Hall, 14 How Pr. (N. Y.) 438.
Motion by defendant to quash levy of execution upon a lot in the city of Aurora upon the ground that the property is exempt to defendant as a homestead. The motion was sustained and plaintiff has appealed.
The facts are as follows: Aurora is a city of less than 10,000. The lot contains less than five acres and is of less value than $ 1500. It is conceded that if defendant is entitled to the homestead exemption at all, the action of the court in quashing the levy should be upheld. The defendant and her husband lived in Chicago and after her husband's death she came to Aurora, purchased the lot in question and has since lived on and occupied it as her home. There was some testimony that her bachelor brother sometimes boards with her but he has a separate home of his own and she testified that there was no one dependent upon her.
The question presented in this case is, does the homestead exemption extend to a person living alone and with no one dependent upon him? The statute is as follows: "The homestead of every housekeeper or head of a family, consisting of a dwelling-house and appurtenances and the land used in connection therewith not exceeding the amount and value herein limited, which is or shall be used by such housekeeper or head of a family as such homestead shall together with the rents, issues and products thereof be exempt from attachment and execution except as herein provided. . . ." [Stat. 1099, Sec. 6704.) It is not contended that defendant is the head of a family but it is contended that she is a housekeeper and entitled to the homestead exemption for that reason. That she is a housekeeper in one sense of the term, there can be no question, for she lives in a house, and though all alone, she keeps house for her own comfort and convenience but is the term used in that sense in the homestead statute? In determining the meaning of the term housekeeper in this statute, we must keep in mind the connection in which it is used and the purpose of the statute itself. We note first, that to entitle any one to homestead exemption under this statute, the property claimed as exempt must "be used by such housekeeper or head of a family as such homestead." Though a person may be a housekeeper or head of a family yet unless the property is used as a homestead it cannot be held as exempt. This, then, makes it important to determine what is meant by using it as a homestead. A homestead is defined as a parcel of land on which a family resides and which is to them a home. [21 Cyc. 458; Gallagher v. Smiley (Neb.), 44 N.W. 187; Tumlinson v. Swinney (Ark.), 76 Amer. Dec. 432; Keyes v. Cyrus (Cal.), 34 P. 722; Brandies v. Perry (Fla.), 22 So. 268; Garrison v. Penn (Ky.), 66 S.W. 14; Gammett v. Storrs (Utah), 49 P. 642.]
A homestead being, therefore, the home of a family, it is apparent that if there be no family there can be no homestead. The term family is a broad term and has been construed by the courts to take in many persons other than parents and children. The central thought underlying the family relation is that of dependence, and hence, any number of persons more than one living together under the same roof with some one of their number as head who controls the affairs of the household and upon whom the others or some of them are, by reason of some legal or moral obligation, dependent, may be said to be a family and the person in control the head of that family. [Ridenour-Baker Grocery Co. v. Monroe, 142 Mo. 165, 43 S.W. 633.]
The primary object to be accomplished in all legislation respecting the homestead is the protection of the family as distinguished from the individual. The homestead exemption is allowed, primarily, for the protection of the dependent ones and it is for their benefit, chiefly, that the party to whom the exemption is allowed takes it. He secures the benefit of it to enable him to properly discharge his obligation to care for and support those dependent upon him and that the family may be kept intact. The keeping of the family together, the preservation of the home for the family and the protection of the dependents are the purposes underlying all legislation providing a homestead exemption and those purposes must be kept constantly in mind in considering any statute relating to a homestead exemption.
The phraseology of the homestead statutes in the different states varies somewhat but in their construction by the courts there is entire uniformity in the holding that the element of dependency in some form is necessary to constitute the family relation and also that the family relation must be present in order for the statute to apply. It has also been held that in the absence of a statute so providing, the family cannot exist with but one member. [Keiffer v. Barney, 31 Ala. 192; Rock v. Haas, 110 Ill. 528; Betts v. Mills (Ok.), 58 P. 857; Wilson v. Cochran (Tex.), 98 Am. Dec. 553.]
If the family relation is once established and while that relation exists, the right of homestead is acquired by the head of the family, then as long as he occupies the homestead as his home he may hold it as exempt even though the other members of the family may all die or be...
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