Hallauer v. Lackey

• Decision Date: 01 May 1945
• Docket Number: 39271
• Citation: 188 S.W.2d 30,353 Mo. 1244
• Parties: L. Isabella Barrows Hallauer v. U. H. Lackey, Appellant. U. H. Lackey, Appellant, v. Fred Hallauer and L. Elizabeth Hallauer
• Court: Missouri Supreme Court

188 S.W.2d 30

353 Mo. 1244

L. Isabella Barrows Hallauer v. U. H. Lackey, Appellant. U. H. Lackey, Appellant, v. Fred Hallauer and L. Elizabeth Hallauer

No. 39271

Supreme Court of Missouri

May 1, 1945

Rehearing Denied June 4, 1945.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Maurice J. O'Sullivan for appellant.

(1) No facts were pleaded or proved to establish that the execution sale of Mrs. Hallauer's title to Joyce was void because it conveyed an exempt homestead. Secs. 608, 612, 613, R.S 1939; Collier v. Porter, 322 Mo. 697, 16 S.W.2d 49; Travelers Ins. Co. v. Beagles, 333 Mo. 568, 62 S.W.2d 800; Regan v. Ensley, 283 Mo. 297, 222 S.W. 773; Secs. 608, 614, R.S. 1939; Gammon v. McDowell, 317 Mo. 1336, 298 S.W. 34; K.C. Granite & Monument Co. v. Jordon, 316 Mo. 1118, 295 S.W. 763; Graham v. Lee, 69 Mo. 334; Hodde v. Hahn, 283 Mo. 220, 222 S.W. 799. (2) Inadequacy of Joyce's bid at the execution sale cannot be invoked against a vendee of the purchaser at execution sale. Elliott v. McCormick, 323 Mo. 263, 19 S.W.2d 654. (3) Respondents did not sustain the burden resting upon them to plead and prove facts establishing the exemption right claimed. Smith v. Thompson, 169 Mo. 553, 69 S.W. 1040. (4) The alleged failure of the sheriff to give personal notice of the execution sale did not affect the validity of the sale. Hudson v. Wright, 204 Mo. 412, 103 S.W. 8. (5) Lackey proved his title and right of possession. Thorp v. Daniel, 339 Mo. 763, 99 S.W.2d 42; 33 C.J.S., p. 596, sec. 302; p. 603, sec. 309; p. 614, sec. 313. (6) Appellant was not required to "exhibit a deed" to entitle him to judgment for possession. Secs. 2833, 3000, R.S. 1939; Ray v. Blackman, 97 S.W. 212, 120 Mo.App. 497; Tucker v. McClenny, 77 S.W. 151, 103 Mo.App. 318. (7) The court erred in enjoining Lackey from recording his deed from Joyce. Secs. 3405, 3426, R.S. 1939.

J. K. Owens for respondent.

(1) Facts were pleaded and proved to establish that execution sale of Mrs. Hallauer's title to Joyce was void, because it conveyed an exempt homestead. Secs. 608, 609, 610, 3385 R.S. 1939; Saxbury v. Coons, 98 S.W.2d 662; First Natl. Bank of Golden City v. Cook, 74 S.W. l.c. 851; Sharp to use, etc., v. Stewart, 185 Mo. 518; State ex rel. v. Oberheide, 39 S.W.2d 395; Luster v. Cook, 297 S.W. 459. (2) Inadequacy of Joyce's bid at the execution sale gave notice to his vendee in order to put him on guard. Ellis v. Powell, 117 S.W.2d 225; Swabey v. Beyers, 71 S.W.2d 110. (3) Respondents sustained the burden upon her to prove and plead fact establishing her exemption rights. Secs. 608, 609, 610, 3385, R.S. 1939; Saxbury v. Coons, 98 S.W.2d 662; First Natl. Bank of Golden City v. Cook, 74 S.W. l.c. 851; Sharp to use, etc., v. Stewart, 185 Mo. 518; State ex rel. v. Oberheide, 39 S.W.2d 395; Luster v. Cook, 297 S.W. 459. (4) The failure of the sheriff to give personal notice of the execution made the sale void. Creech v. Childers, 156 Mo. 338; Stonson v. Call, 163 Mo. 323; Mack v. Byrd, 131 Mo. 682. (5) Lackey failed to prove title. Cummings v. Brown, 181 Mo. 711. (6) The court did not err in enjoining Lackey from recording his deed from Joyce. Schwab v. St. Louis, 274 S.W. 1058; Ellenburg v. E.K. Loves Realty Co., 59 S.W.2d 625.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

This is an appeal from a judgment disposing of two actions, one in quiet title and the other in unlawful detainer. The causes were consolidated in the circuit court and involve the same real estate, a house and lot in Kansas City, Missouri.

The action in unlawful detainer was instituted by appellant in the justice court and was certified to the circuit court upon the affidavit of respondent, who alleged that the deed under which appellant claimed title was void; that respondent was the owner and entitled to possession of the described property; and that title to real estate was an issue in the case. Respondent, thereafter, instituted the action to quiet title. Appellant denied generally the allegations of respondent's petition and filed a cross action asking that title be quieted in him. The petition and cross petition stated no facts to invoke the jurisdiction of a court of equity, but in conventional form asked a determination of the existing legal title. Respondent, in her answer to the cross petition of appellant, alleged that she acquired the property by deed dated October 26, 1940; that her deed was duly recorded (date not alleged); that the deed under which appellant claimed title was void because based upon an execution issued on the judgment in the case of Errol Joyce v. Carey Wheelbarger; that the real estate, worth approximately $ 2000, was sold for the "wholly and totally inadequate sum" of $ 150; that the property sold was respondent's homestead and exempt from execution; that no notice of levy or sale was given as provided by statute; that appellant had constructive knowledge of the facts alleged; and that respondent was ready and willing to pay all taxes paid by appellant and to redeem the property. Respondent again prayed that title be quieted in her and that appellant be enjoined and restrained from asserting any claim to the property.

No reply was filed by appellant, but a jury was waived and the consolidated case was submitted to the court upon the pleadings, evidence and admissions. The court found all issues for respondent and entered the judgment appealed from.

It was admitted that title had been in respondent and, accordingly, appellant assumed the burden of establishing an interest in the property. It was further admitted that respondent had signed an appeal bond (no date given) in a certain cause in the justice court of Jackson County, "giving this property as surety on the bond at the time" (manner not shown); and that on November 19, 1941, a judgment was entered in the circuit court of said county in favor of Errol Joyce and against Carey Wheelbarger and three other parties, including respondent, for $ 750. Appellant offered in evidence the general execution issued January 12, 1942, on the Joyce judgment, the recorded notice of levy on the described property, the notice of sale, the affidavit of due publication of the notice, the report of the sale on execution, and the sheriff's deed under execution, dated February 20, 1942, purporting to convey respondent's interest in the described property to Errol Joyce for a consideration of $ 150. Appellant also offered a special warranty deed, dated February 19, 1944, from Joyce and wife, which deed purported to convey the described premises to appellant. The deed warranted against the claims of persons claiming under the grantors.

There was evidence that, prior to obtaining the conveyance from Joyce and wife, appellant had had a tax deed (not offered in evidence); that he had claimed title to the described premises under the tax deed; that he had had his agent demand rent of respondent in March, 1943; that the demand was refused; that he had then instituted suit against Errol Joyce to quiet title to the described premises; that the suit had been settled and dismissed upon delivery of Joyce's deed to appellant; and that appellant had paid $ 451.74 for the property. The payment was evidenced by a check bearing the following endorsement: "Payment in full for the East forty-two feet of Lots 25 and 26 in Block 6, Ivanhoe Park Addition, free and clear of all encumbrances, except taxes of record, together with immediate possession." On February 29, 1944, after obtaining the deed from Joyce and wife, appellant demanded possession of the premises in writing and, failing to obtain possession, instituted the action of unlawful detainer.

The evidence on behalf of respondent tended to show that she had lived in the property for more than 25 years; that, prior to April 26, 1941, the date of her marriage to her present husband, she was a widow and resided in the property with her daughter. When or how respondent acquired title was not shown and, if by deed as alleged, the date of recording was not shown. The age, marital status or dependency of the daughter (also referred to as respondent's "child") did not appear from the evidence. Without objection, respondent was permitted to testify that, at the time of her marriage to her present husband, she was the head of a family; and that she lived in the described property, owned it and claimed it as her homestead. She further testified that she was living in the property with her husband and daughter in January, 1942, when the general execution was issued on the Joyce judgment; that she had continuously maintained her home in the property; and that the property was worth less than $ 3000. She further testified that she had no personal knowledge that any judgment was entered against her and that she knew nothing of the issuance of the execution, the making of the levy, or the sale of the property by the sheriff, until March, 1943, when rent was demanded. She said that she was not served with any notice that an execution had been issued or that she had the right to claim exemptions. She testified that she claimed the property as her homestead and as exempt property. Her evidence showed that her husband had claimed no other property as homestead and that he was living with his wife on her property. The husband testified that he claimed the property in question as homestead, but thought it was his wife's homestead. At the close of the evidence respondent paid $ 272.75 to the clerk of the court, this sum being the amount of taxes paid by appellant.

In entering judgment for respondent, the court found that appellant had no interest in the property and quieted the title in respondent. The court also set aside the sheriff's deed to Joyce and...