Holland v. Kreider

• Decision Date: 30 April 1885
• Parties: HOLLAND, Appellant, v. KREIDER.
• Court: Missouri Supreme Court

86 Mo. 59

HOLLAND, Appellant,

v.KREIDER.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

F. H. Sheppard for appellant.

(1) An estate by the curtesy, or a marital estate for joint lives, will support a homestead. Thompson on Homesteads (1 Ed.) 174. (2) When a homestead is abandoned judgment liens attach. Thompson on Homesteads (1 Ed.) sec. 263, et seq. Sale is abandonment. Ibid. (3) A man may not have two homesteads at once. Thompson on Homesteads (1 Ed.) sec. 579; Eberhart's Appeal, 39 Pa. St. 509. (4) A judgment is a dormant lien which becomes effective whenever the owner of a homestead alienates within three years after rendition. Eaton v. Ryan, 5 Neb. 47; Allen v. Cook, 26 Barb. 374; Norris v. Kidd, 28 Ark. 492, 7; Eberhart's Appeal, 39 Pa. St. 509; Whitworth v. Lyons, 39 Miss. 467; Hoyt v. Howe, 3 Wis. 752; Tillotson v. Millard, 7 Minn. 513; Smyth on Homestead and Exemption (1 Ed.) secs. 144, 186. (5) The decision below cannot be supported on the ground that the land was exempt as Kreider's homestead. The evidence shows that he bought on the twenty-seventh and filed his deed on the twenty-ninth. R. S. 1879, sec. 2695.

T. W. Kersey for respondent.

“The law in securing a homestead does not render its humane provision ineffectual by prohibiting an alienation of the premises. The householder may sell his homestead, and with the proceeds acquire another. This would be impossible if the alienation of the first would subject it to judgment debts of the vendor. A judgment creates no lien upon a homestead, and, therefore, none will follow it into the hands of the vendee.” Beckmann v. Meyer, 75 Mo. 333; Greene v. Marks, 25 Ill. 221; Cole v. Green, 21 Ill. 104; Smith v. Allen, 39 Miss. 469; Smith v. Rumsey, 33 Mich. 191; Black v. Epperson, 40 Tex. 162; Wagner's St., p. 698, sec. 8. “When a new homestead is acquired the former one loses its exemption from liability for debt, but this manifestly applies only to cases wherein the first is retained as the property of the debtor. The concluding part of the section recognizes a power to sell one homestead and purchase another with the proceeds.” Beckmann v. Meyer, 75 Mo. 333.

NORTON, J.

This is an ejectment suit to recover the possession of certain lands in Greene county, described in the petition. On the trial, defendant recovered judgment, from which the plaintiff has appealed. The evidence in the case shows that J. C. Franklin was the common source of title, and occupied the land as a homestead, from 1863, till he sold it to defendant, in September, 1879; that on the twelfth of May, 1879, judgment was rendered in the Greene county circuit court in favor of C. B. Holland et al. v. J. C. Franklin et al.; that on the twenty-seventh of September, 1879, J. C. Franklin and wife conveyed the said land, occupied as a homestead, to defendant Kreider, by deed of general warranty, which was duly recorded September 29, 1879; that after this sale, execution, which issued on said judgment against said Franklin, was levied on said land, and it was sold, plaintiff becoming the purchaser, and receiving a sheriff's deed therefor, dated January 23, 1880, which was filed for record February 28, 1879.

On this state of facts the court gave the following instruction:

“That a homestead, to the extent of one hundred and sixty acres, and not to exceed the value of $1,500, is exempt from execution where the debt sued on is created subsequent to the acquiring of the homestead; and if J. C. Franklin owned and occupied the land sued for in this action, as his homestead, at the time the debt upon which plaintiff obtained judgment was made, and continued to own and occupy said land, as his homestead, until he sold the same to defendant Kreider, then the title passed to said defendant, and was not subject to plaintiff's execution, and plaintiff cannot recover in this action.”

The court refused to give declarations of law asked by plaintiff, asserting his right to...