Hammons v. Hammons

• Decision Date: 31 July 1923
• Citation: 253 S.W. 1053,300 Mo. 144
• Parties: D. C. HAMMONS, Executor of Estate of OSCAR HAMMONS et al., v. MARY M. HAMMONS et al., Appellants
• Court: Missouri Supreme Court

253 S.W. 1053

300 Mo. 144

D. C. HAMMONS, Executor of Estate of OSCAR HAMMONS et al., v. MARY M. HAMMONS et al., Appellants

Supreme Court of Missouri, First Division

July 31, 1923

Appeal from Benton Circuit Court. -- Hon. C. A. Calvird, Judge.

Reversed and remanded.

Henry P. Lay for appellant.

(1) Homestead laws are liberally construed; their evident purpose of preserving a home should not be dwarfed or thwarted by a narrow and illiberal construction. Blandy v. Asher, 72 Mo. 28; Brewington v. Brewington, 211 Mo. 60; Balance v. Gordon, 247 Mo. 119; Dalton v Simpson, 270 Mo. 287. (2) The case at bar being a suit for partition, the power of the trial court over the homestead was limited to the appointment of commissioners to set it off. Sec. 5862, R. S. 1919; Dalton v Simpson, 270 Mo. 287. (3) A sale of the homestead under the provisions of Section 5863, Revised Statutes 1919, can only be ordered "in a proceeding by petition for such relief 'setting forth the facts,' and cannot be made a device by which the plaintiff in a partition suit may swallow up the homestead as is attempted in this case." Dalton v. Simpson, 270 Mo. 287. (4) Even had this been a direct proceeding by petition under Section 5863, the facts do not justify the making of an order of sale under that section. Schaeffer v. Beldsmeier, 9 Mo.App 444; Dalton v. Simpson, 270 Mo. 287. (5) Even though the provisions of Sections 5863 and 5864 could be invoked in a partition suit, still the decree of the court was grossly erroneous. First, if she elected to accept the sum at which the value of her homestead interest was fixed, she was required to convey without any provision being made for her dower. Second, the sum she was required to pay in order to receive a deed to the residue was not fixed at a sum certain, but was left in uncertainty. Third, by the last paragraph of the judgment, she could not elect to receive the value fixed for her homestead interest absolutely as provided by Section 5863, but such sum was retained under the control of the court.

W. S. Jackson for respondents.

(1) Under Section 1995, Revised Statutes 1919, the court is authorized to direct a sale where a division in kind is impracticable, and cannot be made without great prejudice to the parties in interest. (2) Under Sections 5863 and 5864, a trial court in dealing with homesteads is expressly authorized to direct a sale, if the same cannot be set out in kind without depreciation of the value of the residue. (3) This being an interlocutory decree in partition, it is one of those cases where this court from the pleadings and evidence before it is authorized to finally decide what decree should be rendered in the premises, and if in the judgment of this court the action of the trial court is to be approved that such a finding can be made. Davidson v. Real Estate & Inv. Co., 249 Mo. 508. (4) By Sections 5863 and 5864, the court is especially authorized to render the decree complained of and to hold the proceeds of the sale of the homestead for the benefit of the widow, or to direct that they be re-invested in another homestead.

OPINION

GRAVES, P. J.

Action in partition. The plaintiff and defendants are the heirs at law of John C. Hammons, deceased, or their legal representatives, save and except defendant Mary M. Hammons, who is the widow, and the Denton-Coleman Loan & Title Company, which is a lien holder. John C. Hammons died testate in Benton County, Missouri, in January, 1920, seized of the one hundred and sixty acres of land in controversy in this action. The will simply provided that his estate go according to law. The land consisted of four forty-acre tracts in a string. This was the homestead of Hammons and his wife. The tract of land is therefore one-fourth of a mile wide by one mile in length, running east and west. Near the center ran a public road (north and south), thus leaving a part of the land to the west and the other portion to the east of the public road. The petition closed with this prayer:

"Wherefore, the plaintiffs pray the court to ascertain and determine the estate, title and interest of the parties, respectively, in such real estate, and to define and determine by its judgment and decree the title, estate and interest severally in and to such real property, the same as the court might or could do in any other or different action; and that the homestead and dower of the defendant, Mary M. Hammons, be set off and assigned to her and the remainder of said real estate partitioned among the parties as their interests may appear, if the same can be done without great prejudice to the parties, and if not that said real estate be ordered sold and the proceeds divided among the parties in interest, after paying said deeds of trust, and commuting into cash the interest of the said Mary M. Hammons, widow, and for all proper relief in the premises."

Defendant Mary M. Hammons filed the following answer:

"Now comes Mary M. Hammons, one of the defendants in the above entitled cause, and for her separate answer to the petition admits the truth of the facts stated therein, except that this defendant cannot with certainty ascertain at this time that there will be sufficient personal property belonging to the estate of John C. Hammons to pay all his debts and the expenses of administration.

"Wherefore this defendant prays that her dower and homestead be set off and assigned to her free and clear of all debts and incumbrances, and for such other relief as may be proper."

To this answer plaintiffs first replied thus:

"Come now the plaintiffs in the above entitled cause and for their reply to the answer herein of defendant Mary M. Hammons say that they admit the statement therein contained that she is entitled to both homestead and dower in the lands described in the petition.

"But the plaintiffs say that her homestead and dower cannot be set off in kind and occupied in severalty without great prejudice and inconvenience and damage to the other parties hereto, for the reason that there are the shares of eleven children to be apportioned out of said estate, subject to said dower and homestead, and that the only practicable course to pursue would be to order the premises sold, and the widow's interest to be ascertained and paid over out of the proceeds of sale.

"Wherefore, by reason of the premises, the plaintiffs pray that, as partition in kind cannot be made without great prejudice to the interested parties, that the court may order the sheriff to sell the lands described in the petition and divide the proceeds according to law."

Upon a trial an interlocutory decree was entered upon the foregoing pleadings, which, after finding facts. concluded in this language:

"The court further finds the total value of said land to be far in excess of the dower and homestead rights of said widow, and that said homestead cannot be occupied severally without great inconvenience to the other parties hereto interested in the residue, and that a severance of such homestead would greatly depreciate the total value of said premises. The court further finds that there are sufficient assets in personal estate to pay all debts lawfully chargeable against the same or if there should be a slight deficiency in this connection the court finds that upon final distribution of the proceeds of the sale of said premises a sufficient sum may be deducted to satisfy any unpaid debts.

"It is therefore ordered, adjudged and decreed by the court that said premises hereinabove described be sold according to law by the Sheriff of Benton County, Missouri, for cash in hand, and that out of the proceeds thereof the deeds of trust on said premises to the Denton-Coleman Loan & Title Company be paid and satisfied, and that out of the residue of said proceeds the widow's rights therein be satisfied, and that the balance of said proceeds be apportioned among the other parties according to their prospective interests."

Mary M. Hammons filed motion for new trial, and pending this the court made the following order:

"Now at this time the court of his own motion reopens the above entitled cause and sets aside all orders and entries heretofore made concerning an appeal on and after January 4, 1921, and said cause is by the court continued until the March, 1921, term of this court."

Thereafter plaintiffs filed the following amended reply:

"Come now the plaintiffs in the above entitled cause and for their amended reply to the answer herein filed of defendant Mary M Hammons, say that they admit the statement therein contained that she is entitled to both homestead and dower in the land described in the petition.

"But plaintiffs say that her homestead and dower cannot be set off in kind and occupied in severalty without great prejudice inconvenience and damage to the other parties hereto, for the reason that there are the shares of eleven children to be apportioned out of said estate, subject to said dower and homestead, and that the only practicable course to pursue is to order the premises sold, under the provisions of Sections 5863 and 5864 of the Revised Statutes of 1919 of the State of Missouri, and the window's interest to be ascertained and paid over to her out of the proceeds of such sale; provided, that this court by its order and judgment herein shall first give the widow her option to pay to the other parties herein the value of the remainder of the premises, the same to be ascertained by the court, or in the event that she does not choose to do so, that the court may order such homestead to be transferred to the other parties herein, and the payment of the value of such homestead interest to the said Mary M. Hammons, the proceeds of such homestead if paid to said widow to be under the control of ...