Hannah v. Hannah

• Decision Date: 28 March 1892
• Citation: 19 S.W. 87,109 Mo. 236
• Parties: Hannah et al., Appellants, v. Hannah et al
• Court: Missouri Supreme Court

19 S.W. 87

109 Mo. 236

Hannah et al., Appellants, v. Hannah et al

Supreme Court of Missouri, First Division

March 28, 1892

Appeal from St. Clair Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

W. O Mead for appellants.

(1) The homestead can exist only where the legal title is vested in the head of the family; at the time of his death it does not exist in a mere equity in the land. R. S. 1889, sec. 5441. (2) The homestead may be sold in partition where the land is not susceptible of division, subject to the homestead rights of the widow and minor children. R. S. 1889, sec. 5439; Poland v. Vesper, 67 Mo. 727.

W. P Sheldon and E. J. Smith for respondents.

(1) The appellants have filed no statement of this cause and the appeal should be dismissed. R. S., sec. 2301. (2) A homestead can exist where the head of a family has only an equitable interest. 13 Mo.App. 41; 66 Mo. 375; 96 Mo. 142; Thompson on Homesteads, sec. 220. (3) A homestead cannot be sold in partition as prayed in the petition herein. 13 Mo.App. 397; 15 Mo.App. 249. (4) This case is an effort of some of the heirs of the mortgagor, against the wish of the widow and the other heirs and against the desire of St. Clair county, to compel the foreclosure of a mortgage given by the ancestor to St. Clair county. This, too, when so far as appears the mortgage is not yet due. Such effort cannot succeed.

Sherwood P. J. Barclay, J., and he is absent.

OPINION

Sherwood, P. J.

In 1855 the south half of the northeast quarter of section 10, township 38, range 25, known as swamp land, was sold by order of the county court of St. Clair county, on a credit of one year, the purchaser giving bond and receiving a certificate of purchase from the sheriff. The purchaser at this sale was one Cox, at the price of $ 100; gave bond as required and received his certificate.

In February, 1857, Cox, by his deed, conveyed to Joseph Hannah all his right, title and interest in the land, subject to the payment of the purchase money, Hannah assuming the payment of that, and giving his own bond in lieu of that given by Cox, and securing the bond by mortgage, duly recorded. Hannah paid the interest on this bond up to the time of his death.

St. Clair county never executed any conveyance to Hannah, but it was occupied by him as a homestead up to the time of his death, which, it seems, occurred after the year 1875, and his widow and minor children still occupy the land as a homestead.

This suit is one brought by some of the adult heirs for the partition of said land, and it is brought against some of the adult heirs as well as the widow and minor heirs of the decedent. After averring that the bond is due and unpaid the petition concludes thus: "That said defendants fail and refuse to pay their proportion of the money necessary to pay off and discharge said bond and mortgage given for the purchase money aforesaid. That there are no debts due by said estate of Joseph Hannah, deceased, other than for the purchase money for said land as aforesaid. That said land cannot be divided between the parties aforesaid without great prejudice to the interests of all concerned in said land.

Plaintiffs, therefore, demand judgment that said land be sold, subject to any homestead right the widow and minor children may have therein, and the proceeds applied to the payment of the purchase money for said land, and all in excess thereof be divided, share and share alike, between Francis D. Hannah, Martha Cripe, Nancy McFarland, Joan Cripe, Thomas J. Hannah, Vienna Hannah, plaintiffs herein, and Nathaniel Hannah, Henry Hannah, William Hannah, Jefferson Hannah, George Hannah and Cora May Cripe, defendants herein, and that such sale shall carry all the interests of all the heirs of the said Joseph Hannah, deceased, herein named, and all the right, title, interest and estate which said St. Clair county has and holds for the use and benefit of the commonschool fund thereof, and for such other and further relief as may be proper."

The defendants, among them St. Clair county, made joint answer as follows: "Now come the abovenamed defendants, and, for answer to plaintiffs' petition herein, say that it is true that the lands in the petition described were, by act of congress, granted to the state of Missouri; that the county court of said county, by its order, directed the sheriff of said county to sell said land, which was done as stated in the petition; that Joseph W. Cox became the purchaser thereof for the sum of $ 100, and gave his bond with security therefor, as required by law; that afterwards Joseph Hannah bought all of the right, title and interest of the said Joseph W. Cox in and to said lands, and assumed the payment of the bond of the said Joseph W. Cox, and gave his own bond instead thereof, and, to secure the payment of...