Houf v. Brown

• Decision Date: 24 December 1902
• Citation: 171 Mo. 207,71 S.W. 125
• Parties: HOUF v. BROWN et al.
• Court: Missouri Supreme Court

71 S.W. 125

171 Mo. 207

HOUF v. BROWN et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1902.

HOMESTEAD — ALLOTMENT — INCUMBRANCES —APPRAISEMENT—SEPARATE TRACTS — VALUE—RIGHTS OF WIDOW AND MINOR CHILDREN—ESTOPPEL OF WIDOW—SALE BY ADMINISTRATOR—EJECTMENT—EVIDENCE.

1. In estimating the value of property for the purpose of setting off a homestead, the amount of an incumbrance thereon is to be deducted.

2. Where an 80-acre tract of land was divided into three lots, and the entire tract was not worth more than $1,500 above the incumbrance on the lot containing the dwelling house, the entire tract was subject to homestead, and a foreclosure of the incumbrance on the lot containing the dwelling house did not destroy the homestead right in the rest of the land.

3. Evidence held to sustain a finding that an entire tract of land divided into three lots did not exceed $1,500 in value, and was, therefore, exempt as a homestead.

4. Where the entire tract of land purchased at an administrator's sale was exempt to the widow and minor children as homestead, the purchaser at the sale was not entitled to have the homestead exemption set off by appraisers, as provided by Rev. St. 1899, § 3624.

5. Where land purchased at an administrator's sale was exempt to the widow and minor children as homestead, the purchaser was not entitled to maintain ejectment therefor on the ground that the widow had estopped herself to claim a homestead, the outstanding title in the children being sufficient to defeat the purchaser's action.

6. Where a widow failed to prosecute her petition for allotment of her homestead in the probate court, and abandoned her objections to the administrator's petition to sell certain land claimed by her to be exempt as her homestead, and herself bid for the land at the sale after having unsuccessfully attempted to induce the purchaser not to bid, she was not thereby estopped from claiming that the land was exempt as her homestead.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Ejectment by William H. Houf against J. M. Brown and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Ejectment for 30 acres of land in Livingston county. The land belonged to Elias Kile in his lifetime, and the plaintiff claims title under a deed from the administrator of Kile's estate. Kile died in 1887, leaving a widow, now Emily Shenkle, defendant, and several minor children. Emily claims that the land in suit was part of the homestead of her late husband, and exempt from sale for his debts as such. The cause was tried by the court, jury waived. The evidence shows: That Kile died owning but little personal property, which was by the probate court assigned to the widow, under section 252, Rev. St. 1899. That he owned at his death about 80 acres of land, on which he resided as his homestead. Before his death he and his wife executed a deed of trust covering 40 of this 80 acres, to secure a debt of $200. The 40 acres so incumbered contained his dwelling house. After his death that deed of trust was foreclosed, and at the sale the widow became the purchaser. There were some small debts proven up and allowed in the probate court against the estate, and the public administrator took charge of it. The administrator filed a petition in the probate court for authority to sell the 30 acres of land now in question to pay debts. The 30 acres were not a part of the 40 included in the deed of trust above mentioned. The court made the order for the sale of the land. Appraisers were appointed, who appraised it at $600. The administrator advertised and sold it in a body for $110 to the plaintiff. The abstract is not very clear as to the amount of the debts, or what showing in that respect the administrator made in his petition for authority to sell the land. We gather with some degree of uncertainty that there were but two debts proven and allowed, and they were for $22.20 each, and that they had either been paid or purchased by the widow before the administrator filed his petition, and that there was really nothing but costs of the administration due. However, in view of other facts in the case, that is not very material. The widow filed objections in the probate court to the petition, but she finally withdrew her objections, and consented that the petition to sell the land be granted, and it was so ordered. The order was, not to sell the land subject to the homestead, but it was for an absolute sale of all the title which Kile owned at his death. The testimony showed that the widow was present at the sale, and made a bid on the land, but the plaintiff's bid was the highest, and it was knocked off to him. The plaintiff, in his own behalf, testified that the 40 acres covered by the deed of trust were at the date of the trial worth $40 or $45 an acre, the 30 in suit were worth $30...