Hufschmidt v. Gross
| Decision Date | 12 December 1892 |
| Citation | 20 S.W. 679,112 Mo. 649 |
| Parties | Hufschmidt et al. v. Gross et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Affirmed.
T. A Lowe for appellants.
(1) The decree cannot be sustained; the accounting of the referee was on a wrong principle. Thompson on Homesteads, sec. 725; Mix v. King, 66 Ill. 145; Revised Statutes, 1889 sec. 5444; Keyes v. Hill, 30 Vt. 579; Kaes v Gross, 92 Mo. 647; Finney v. Prindeville, 86 Mo. 521; Thompson on Homesteads, secs. 241, 244, 246, 570. (2) If the parties are to be regarded as quasi cotenants, then the right of one or several cotenants to collect rents from the cotenant in possession can be derived only from the fact that such cotenant in possession has by his acts placed himself in a position where he would be chargeable with rents. Long v. McDow, 87 Mo. 197; Reagan v. McCoy, 29 Mo. 356; Dodd v. Barry, 15 Mo.App. 595. (3) There was no demand for homestead nor for rents and profits prior to the institution of this suit eight years after the right accrued. Such laches are inexcusable. Evans v. Snyder, 64 Mo. 516. (4) The purchase of the Phelps county farm constituted an acquisition of a new homestead. (5) The marriage of the widow and her removal with her minor children to the home of her new spouse constituted an abandonment of the homestead. Kaes v. Gross, 92 Mo. 647. (6) While the parents, or either of them, live and remain sui juris, the minor children have no substantive right in the homestead which they can assert independently of such parents, or against them; in other words, in this case, the abandonment by the parents was the abandonment by the minor children, so long as they remained with and under the control of the parent, whether natural or in loco parentis. Thompson on Homesteads, secs. 43, 570; Nevins' Appeal, 47 Pa. St. 230; Shepard v. Brewer, 65 Ill. 383; Howze v. Howze, 2 S.C. 232; Clubb v. Wise, 64 Ill. 157; Brown v. Coon, 36 Ill. 243; Wright v. Dinning, 46 Ill. 271; Buck v. Conlogue, 49 Ill. 391; Morrill v. Hopkins, 36 Tex. 686; Dawson v. Holt, 44 Tex. 174. (7) This being the law, there was no legal impediment to the administrator's sale in March, 1882, and the purchaser, Gross, took the estate discharged of the homestead. And although the rule apparently to the contrary, contended for by the respondents, to the effect that the surviving parent cannot alienate or abandon the homestead so as to bar the rights of the minor children, as announced by the appellate courts of this state in Rohrer v. Brockhage, 13 Mo.App. 397, affirmed in Rohrer v. Brockhage, 86 Mo. 544; Rohrer v. Brockhage, 15 Mo.App. 16; Kochling v. Daniel, 82 Mo. 54; Carroll v. Hurt, 78 Mo. 649, -- the purchaser, Gross, is entitled in equity to be reimbursed to the amount of the school mortgage. Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; Jones v. Manly, 58 Mo. 559; Woerther v. Miller, 13 Mo.App. 567; Evans v. Snyder, 64 Mo. 516.
L. F. Parker for respondents.
(1) The policies of insurance collected by the widow of Hufschmidt were payable to her, never became the property of his estate, and did not pass to her under the will. (2) The claim that the amount of plaintiffs' recovery should be reduced by the proportion to which the widow would have been entitled is opposed to the decisions of this court. Rohrer v. Brockhage, 13 Mo.App. 397; S. C., 86 Mo. 544; Kochling v. Daniel, 82 Mo. 54; Canole v. Hurt, 78 Mo. 649; Rogers v. Mayer, 84 Mo. 520. (3) First. In this state, at the death of the head of a family, having a right of homestead, the interest acquired by the widow and minor children is an estate for life in the widow, and in the children during their minority, and this estate vests on the death of the husband and father, and is not lost by abandonment; and, second, even though a widow may abandon such homestead, the taking of the minor children with her will not operate as an abandonment by them. The case of Kaes v. Gross, 92 Mo. 647, is erroneous in principle, and should be overruled. An examination of the statutes of the different states, on this subject, and the construction each has received will show that there is no "general doctrine" on this subject, and that each state stands on its own statute even as the proverbial tub "stood on its own bottom."
This is a suit to establish a homestead right in favor of the plaintiffs in the property described in the petition, and for an accounting of the rents and profits of such homestead interest.
The material agreed facts are these: Gustavus Hufschmidt died on the twenty-sixth of September, 1879, leaving a widow and a number of children by his then and by a former wife. Two of the children by the former wife, namely, George and Alice, and one by the second wife, named Lulu, were minors. At the time of his death and prior thereto, he owned a lot in the town of Pacific, in Franklin county, on which there was a brick building, the upper story of which was used by him as his residence, and the lower story was used for business purposes. In August, 1880, his widow married Phillip Kaes. Immediately after her marriage to Kaes, she left the property before mentioned, taking with her Alice and Lulu, and thereafter resided with her second husband at his home in St. Louis county. The administrator of the Hufschmidt estate sold the property to pay debts of the deceased, to the defendant, George Gross; and made to him a deed, dated the tenth of March, 1882, at which date Gross took and has ever since held exclusive possession of the property so purchased.
The three children, George, Alice and Lulu, the plaintiffs in this case, were still minors at the date of the administrator's deed. George reached the age of majority on the tenth of November, 1885, and Alice on the tenth of April, 1889, and Lulu will attain that age the tenth of January, 1897. This suit was commenced against Gross in March, 1889. Kaes and wife were made defendants, but they filed no answer. On the twenty-first of January, 1890, the court made an interlocutory decree declaring the plaintiffs entitled to a homestead in the premises; that they had been deforced therefrom by the defendant Gross since tenth of March, 1882; that the property did not exceed in quantity, but did in value, the homestead interest, and that the homestead could not be severed. The court at the same time directed a reference for the purpose of taking an account of the rents and profits.
It was agreed before the referee that the property was of the value of $ 4,500, and it may be stated here that the homestead exemption in towns like Pacific cannot exceed $ 1,500 in value. The referee ascertained the gross rental value of the property, and from that deducted the taxes, repairs and necessary improvements. He fixed the net rental value from the tenth of March, 1882, to the date at which George became of age at $ 2,781, and from that time until Alice became of age at $ 2,657, and from that date to the date of the interlocutory decree at $ 532, and from thence on until the other plaintiffs would become of age at $ 490 per annum. He charged defendant with one-third of the above amounts, that is to say, in the proportion of $ 1,500, the value of the homestead, to $ 4,500, the value of the entire property, all of which the court approved, and gave judgment accordingly.
1. The first, and by far the most important, question in this case is whether the plaintiffs have a homestead in the premises in question. The contention of the defendant Gross is twofold. He insists, first, that the widow abandoned her homestead in this property when she married Kaes, and took up a permanent residence with him in another county; second, that the abandonment of the homestead by her was an abandonment of it by the minor children. The first of these propositions was affirmed in Kaes v. Gross, 92 Mo. 647, 3 S.W. 840, on the same facts now before us; and both propositions are clearly asserted in several cases decided by the supreme court of Illinois. Buck v. Conlogue, 49 Ill. 391; Shepard v. Brewer, 65 Ill. 383. See also Wright v. Dunning, 46 Ill. 271, and Clubb v. Wise, 64 Ill. 157. The statute of that state, however, provides: "Such exemption shall continue after the death of such householder, for the benefit of the widow and family, some or one of them continuing to occupy such homestead, until the youngest child shall become twenty-one years of age, and until the death of such widow." 1 Statutes of Illinois, [D. B. Cook & Co.'s Ed. of 1858]. The statute of that state, it will be seen, simply continues the exemption, and that, too, on the condition of a continued occupancy of the property. It is so unlike the statute of this state that the adjudications there can be of no authority here on the question now in hand. This will be clear when we come to examine the statute of this state.
The first section of the homestead law, being section 2689, of the Revised Statutes, 1879, exempts the "dwelling-house," and appurtenances not exceeding the specified amount and value, which is "used by such housekeeper or head of a family as such homestead," from attachment and execution. Thus far the statute is simply one of exemption, and the exemption extends only to the dwelling-house and appurtenances. When the property ceases to be the dwelling-house, it ceases to be exempt from attachment and sale under execution under this section. But section 2693 provides: ...
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