Finnegan v. Prindeville

• Decision Date: 31 October 1884
• Citation: 83 Mo. 517
• Parties: FINNEGAN et al., Appellants, v. PRINDEVILLE.
• Court: Missouri Supreme Court

83 Mo. 517

FINNEGAN et al., Appellants,

v.PRINDEVILLE.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Lewis Circuit Court. -- HON. BEN. E. TURNER, Judge.

AFFIRMED.

Geo. Ellison and James P. Lewis for appellants.

It is a general rule that domicile in any state is necessary and required to entitle a person to homestead rights therein. Alston v. Ulman, 39 Tex. 157; Jordan v. Godman, 19 Tex. 257; Thompson on Homestead, 391. The mere fact that Prindeville purchased the land and recorded his deed in the year 1866, does not of itself give him a right of homestead in said land. He must have occupied it prior to the contraction of the debt. Thompson on Homestead, §§ 244, 245, 246; Stanley v. Baker, 75 Mo. 60; Christy v. Dyer, 14 Iowa 441.

Blair & Marchand for respondent.

The debt was contracted in Ohio after the filing of the deed for record in this state. This entitled defendant to a homestead under our law. R. S., 1879, § 2695. Our homestead statute was copied from that of Vermont, and it has been so held in the latter state. Bank v. Gale, 42 Vt. 27; Lamb v. Mason, 45 Vt. 500. This court has held that it will follow the Vermont law as construed by the Supreme Court of that state. Skouten v Wood, 57 Mo. 380; Shindler v. Givens, 63 Mo. 394; Meinzer v. Diveling, 66 Mo. 375; Beckman v. Meyer, 75 Mo. 333; Stanley v. Baker, 75 Mo. 60; Thompson on Homesteads, p. 254, § 300,

HENRY, C. J.

Appellants had a judgment against respondent on which an execution was issued and placed in the hands of the sheriff of Lewis county, who made a return to the execution showing that he had set apart a certain tract of land to defendant, as a homestead. Plaintiffs moved to quash that portion of the sheriff's return. The court overruled the motion, and the cause is here on appeal.

The following is the admitted evidence in the cause: “It is admitted by the parties to this suit that the deeds to the defendant for the land set apart as a homestead by the sheriff was filed in the recorder's office of Lewis county, Missouri, in the year A. D. 1866. That the defendant, at the time of filing said deeds aforesaid, was a resident of the state of Ohio, and continued so to be until the year A. D. 1871. That the debt upon which the judgment in this cause was rendered, and upon which said execution was issued, is stated and alleged in the petition upon which said judgment was rendered, to have been contracted and created in June, A. D. 1869, and whilst the defendant, Prindeville, was still a citizen of, and with his family residing in, the state of Ohio. That the defendant with his family moved from the state of Ohio to the state of Missouri, in the spring of the year A. D. 1871, and in that spring settled on the lands in controversy with his family, and he and his family have resided thereon ever since.”

Maurice Prindeville, the respondent, herein testified as follows: “That at the time of the purchase of the lands in controversy he was a citizen of, and resided in the state of Ohio; and at the time of said purchase he intended to move upon said land and live thereon. But he did not do so until March 1st, A. D. 1871, when he and his family moved on said land. That while he was a citizen of the state of Ohio, he owned no real estate in said state; that he lived upon a rented farm.” On these facts is respondent entitled to the premises exempt from execution as a homestead?

It will be observed that both plaintiffs and defendant resided in the state of Ohio, when the debt was incurred. The debt was contracted in June, 1869. The defendant's deed was recorded in Lewis county, Missouri, in 1866. The defendant with his family moved onto the land in 1871, and they have ever since resided there. Defendant owned no real estate in the state of Ohio. Plaintiffs obtained their judgment on which this execution issued in the circuit court of Lewis county, on the 15th of March, 1882. Our statute, Rev. Stat., sec. 2695, provides that: “Such homestead shall be subject to attachment and levy of execution upon all causes of action existing at the time of the acquiring such homestead, except as herein otherwise provided; and, for this purpose, such time shall be the date of the filing, in the proper office for the records of deeds, the deed of such homestead, and in case of existing estates, such homestead shall not be subject to attachment or levy of execution upon any liability hereafter created.” The succeeding section provides that: “Whenever such housekeeper or head of a family shall acquire another homestead in the manner provided in section two thousand six hundred and ninety-five, the prior homestead shall thereupon be liable for his debts, but such other homestead shall not be liable for causes of action against him to which such prior homestead would not have been liable; provided that such other homestead shall have been acquired with the consideration derived from the sale or disposition of such prior homestead, or with other means not derived from the property of such housekeeper or head of a family.”

The case of Stanley v. Baker, 75 Mo. 60, was one in which Baker had a homestead in the town of Lancaster, and, while occupying it as a homestead, purchased a tract of land in Schuyler county, near Lancaster, and his deed to that land was recorded in 1869. In 1873 he contracted a debt on which a judgment was obtained against him in 1877. In 1876 he sold his residence property in Lancaster for $1,300, which he expended in improvements upon the land; but no part of the money received on the sale of his town property was used in the purchase of the land, and this...