Grimes v. Portman

• Decision Date: 21 December 1889
• Citation: 12 S.W. 792,99 Mo. 229
• Parties: GRIMES v. PORTMAN et al.
• Court: Missouri Supreme Court

12 S.W. 792

99 Mo. 229

GRIMES v. PORTMAN et al.

Supreme Court of Missouri.

December 21, 1889.

HOMESTEAD — JUDGMENT — MORTGAGE.

1. As the homestead of a judgment debtor is not subject to levy and sale under the judgment, no lien attaches to the land thereunder.

2. Under 1 Rev. St. Mo. 1879, § 2689, the owner of a homestead and his wife may lawfully mortgage the same, and the mortgage would be valid as against them, and all parties claiming under them.

3. Where a wife joins with her husband in the execution of a deed of trust of their homestead, which is foreclosed, and sale made thereunder, a quitclaim deed of the property, executed by her after her husband's death, will not pass any title thereto.

Appeal from circuit court, Grundy county; G. D. BURGESS, Judge.

Ejectment by James Grimes against John Portman. The Union Bank was afterwards made defendant, on its own motion. Case was tried to the court without a jury, and judgment rendered for plaintiff. Defendants appealed.

J. H. Shanklin and George Hall, for appellants. R. A. De Bolt and A. W. Mullins, for respondent.

RAY, C. J.

This is an action in ejectment, the petition being in the ordinary form. It was originally instituted against defendant Portman alone, but afterwards the Union Bank, upon its own motion, was also made a defendant, and defendants answer jointly, by a general denial. The defendant bank, by deed dated in March, 1883, conveyed the lands involved herein to defendant Portman, who was, when the suit was brought, in possession of the premises. The case was tried to the court without a jury, and judgment had for plaintiff, from which defendants have appealed.

Plaintiff claims title under a deed of trust executed October 7, 1878, by one Wilson and wife, on the 120 acres in suit, and under the sale of foreclosure, at which plaintiff became the purchaser, and received a deed in due form, the same being acknowledged and recorded September 7, 1882. The defendants derived title under a judgment obtained in January, 1878, by one Chrisman, against said Samuel Wilson, in the circuit court of Grundy county, for $845, which judgment passed by successive assignments to the defendant the Union Bank. After the death of said Wilson, in January, 1879, the said judgment was duly classified in the probate court, and the administrator of said Wilson's estate thereafter, upon proper petition, reciting said judgment, and upon proper orders and proceedings in that court for the sale of the lands of the deceased for the payment of debts, sold said lands, including those in suit, and the Union Bank, becoming the purchaser of the 120 acres involved, as well as other lands belonging to said Wilson, received the administrator's deed therefor. The bill of exceptions, among other things, recites as follows: "That the plaintiff, to sustain the issues on his part, introduced testimony which was not controverted by any evidence offered by defendants, and which said testimony offered by plaintiff tended to prove that one Samuel Wilson died at Grundy county, Mo., on the 1st day of January, 1879; that at the time of his death, and for many years prior thereto, to-wit, fifteen years and more, said Wilson was seised and possessed of the land in controversy, the title thereto being evidenced by patents of record; that said Wilson also owned about 27½ or 28 acres adjoining the land in question on the east, on which he resided with his family; that said Wilson, at the time of his death, and for many years prior thereto, was the head of...