Goode v. Lewis

• Citation: 24 S.W. 61,118 Mo. 357
• Parties: Goode et al. v. Lewis, Plaintiff in Error
• Decision Date: 27 November 1893
• Court: United States State Supreme Court of Missouri

24 S.W. 61

118 Mo. 357

Goode et al. v. Lewis, Plaintiff in Error

Supreme Court of Missouri, First Division

November 27, 1893

Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

John Cosgrove and J. H. Johnston for plaintiff in error.

(1) The courts of this state regard the "intention" of the owner of a homestead when determining whether a homestead has been abandoned. Duffey v. Willis, 99 Mo. 132, and cases cited. (2) Actual, physical occupancy as a home of the premises, claimed as a homestead by the party claiming the homestead, is not in all cases necessary. Ruske v Ruske, 51 Mich. 541; Blum v. Carter, 63 Ala 240. (3) The possession of plaintiff in error, at the request of his father, coupled with the intention of Joshua Lewis to move onto and occupy the land in question, as his homestead was, under the circumstances of this case, a sufficient compliance with the homestead laws of this state to constitute the lands described in the petition the homestead of Joshua Lewis. Occupancy need not in all cases be actual or physical. Parsods v. Moses, 16 Iowa 440; Rhorer v. Brockhage, 13 Mo.App. 393. (4) At the death of Joshua Lewis, a homestead vested in his widow, Dicey Lewis, absolutely under the statute concerning homesteads then in force. Skouten v. Wood, 57 Mo. 380; Gragg v. Gragg, 65 Mo. 343; Rogers v. Marsh, 73 Mo. 64. (5) This court has jurisdiction of this case. The only question to be adjudicated is, was it necessary that Joshua Lewis should have been "actually living on the land," with "his family occupying" it as a home before it could become his homestead. This does not involve the title to real estate. Schneider v. Hoffmann, 9 Mo.App. 280; Rhorer v. Brockhage, 13 Mo.App. 397. Because the judgment of this court, if for plaintiff in error, might "affect" the title to real estate, does not necessarily involve the title to real estate. Syenite Granite Co. v. Bobb, 97 Mo. 46; Corrigan v. Morris, 97 Mo. 174.

Draffen & Williams for defendants in error.

(1) No motion for a new trial was filed, either at the term at which the cause was tried and the interlocutory decree was entered, or at the term at which the final judgment confirming the sale was rendered. In the absence of a motion for a new trial, this court cannot review the rulings of the trial court as to matters of exception, and there is no error in the record proper. The motion should have been filed at the February term, 1890. Rhorer v. Brockhage, 15 Mo.App. 16; State ex rel. v. Hurlstone, 92 Mo. 327; State ex rel. v. Burckhart, 83 Mo. 430. (2) If this court could review the rulings of the trial court, in the absence of a motion for a new trial, and, if the contention of the plaintiff in error was well founded, still, this would be no obstacle to a decree for partition. (3) The land in controversy never became the homestead of Joshua Lewis in his lifetime, and the title thereto upon his death did not vest in fee in his widow, Dicey Lewis, and the court below properly so held. The land was never occupied by said Joshua Lewis and his family. The declarations of law given by the court were proper. 2 Revised Statutes, 1889, sec. 5435; General Statutes, 1865, sec. 1. "It was suggested in the argument that, if one could secure a homestead by purchasing land with the intent to make it his home, he might have a homestead in every county in the state, or in every state in the Union having a homestead law similar to ours; but this suggestion overlooks the question of occupancy. The head of a family may have a tract of land in every county in the state, and intended each for his homestead when he purchased it, but he can only have a homestead in that which he occupies as such." Finnegan v. Prindeville, 83 Mo. 517; Bunn v. Lindsey 95 Mo. 250; Tennent v. Prewitt, 94 Mo. 145; Smith v. Bunn, 75 Mo. 559. While the act is to be liberally construed, it can only cover cases within its terms. Casebolt v. Donaldson, 67 Mo. 368. Occupancy is essential to impress the land with the character of a homestead. A mere intention to occupy it at a future time is insufficient. Hansford v. Holdam, 7 Rep. 177; Thompson on Homesteads, sec. 248.

Black P. J. Barclay, J., absent.

OPINION

Black, P. J.

This was a suit between the heirs of Joshua Lewis for the partition of real estate. He died leaving a wife, three children by the first and six by the second marriage. The defendant, Henry W. Lewis, the sole appellant, is one of the children of the last marriage. He insists that the property in question was the homestead of his father, that upon the death of his father the title passed to his mother, and at her death to her children, to the exclusion of the children of the first marriage. On the other hand the plaintiffs insist that the question whether the property was the homestead of deceased is not open to review, because of a failure of the defendant to file a motion for new trial at the proper time, or even at any time.

The facts bearing upon this preliminary question are these:

The case was tried at the July term, 1890, of the circuit court. The court then made a decree of partition, and at the same time ordered the land to be sold and the proceeds to be distributed according to the rights of the parties as found and set forth in the decree. The following proceedings were had at the February term, 1891. On the seventeenth of that month the sheriff filed his report of sale; on the nineteenth the defendant filed "exceptions to the report of sale," assigning, among others, the following reasons: Fourth. Because the court erred in not deciding the law as prayed by this defendant at the trial of the cause. Fifth. Because the court erred in declaring the law on the part of the plaintiffs as prayed by them. Sixth. Because the sheriff has not reported the names of the parties correctly.

On the twenty-fifth of the same month the court made an order confirming the sale, and at the same time, as we understand this record, overruled the exceptions, to which ruling defendant duly excepted. He also in due time excepted to the action of the court in giving and refusing instructions.

The first inquiry is whether this motion filed by the defendant and denominated "exceptions to the report of sale" should be treated as a motion for new trial; for, if not so treated, the appellant is here without such a motion. This motion, it will be seen, complains of the action of the court in declaring the law at the trial. Indeed one only of the eight alleged errors goes to any act of the sheriff in making this sale, and that is the sixth. All the other objections go back to alleged errors committed at the trial of the cause. The motion does not, it is true, pray for a new trial, but the objection therein stated that the court erred in declaring the law, if well taken, must result in a new trial. Disregarding the name given to this motion, it is in substance and effect a motion for new trial. It seems to have been so treated by the parties in the circuit court, for there was no effort made to strike it from the files, or to strike out any part of it. We think the motion should be treated here for what it is in substance and effect, that is to say, a motion for new trial.

The next question is whether the motion was filed at the proper time. The order of the court confirming the sale, or, what is the same thing, directing the payment of costs and the distribution of the money in the hands of the sheriff, is the final order from which an appeal lies. Murray v. Yates, 73 Mo. 13; Turpin v. Turpin, 88 Mo. 337; Holloway v. Holloway, 97 Mo. 628, 11 S.W. 233. The order of the court confirming the report of sale in this case was made at the February term, 1891, and it follows that the motion for new trial was properly filed at that term.

But it is again insisted that it was filed out of time, because filed five or six days before the order of confirmation was entered. A motion for new trial must be made within four days after final judgment, and usually...