Ingraham v. Dyer

• Decision Date: 18 December 1894
• Citation: 28 S.W. 840,125 Mo. 491
• Parties: INGRAHAM v. DYER.
• Court: Missouri Supreme Court

28 S.W. 840

125 Mo. 491

INGRAHAM v. DYER.

Supreme Court of Missouri, Division No. 2.

December 18, 1894.

RES JUDICATA — ENJOINING EXECUTION — REVIEW ON APPEAL.

1. A judgment debtor is not estopped, by the date of the note upon which the judgment is founded, to show, in a suit to restrain the sale of his homestead under execution, that the note was not in fact executed and delivered until after his homestead deed had been recorded.

2. A person holding an equity of redemption in his homestead has an interest therein sufficient to restrain its sale under execution.

3. The court cannot go outside of the record to review the action of the trial court.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Suit by Dorson P. Ingraham against Leigh R. Dyer to restrain a sale under execution. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank Titus, for appellant. Lewis H. Hatfield, for respondent.

GANTT, P. J.

This is a suit in equity to restrain the sale of certain real estate in Kansas City under a judgment of the circuit court of Jackson county, rendered in favor of Leigh R. Dyer against Henry S. Ingraham, Asa Ingraham, and Dorson P. Ingraham, on the 4th day of December, 1889, on the ground that the same is exempt as the homestead of Dorson P. Ingraham, the plaintiff. There was also a second count in the petition, asking to have the judgment set aside on the ground of the unauthorized appearance of attorneys for Asa Ingraham; but inasmuch as the judgment of the circuit court was against the plaintiff on this second count, and he has not appealed therefrom, the decree of the court in favor of plaintiff on the first count presents the only matter for our consideration. The judgment from which plaintiff seeks to exempt the homestead was obtained on a promissory note dated February 1, 1886, for $3,780.47, payable to Leigh R. Dyer, due on or before three years after date, and was signed by Henry S. Ingraham, Asa Ingraham, and Dorson P. Ingraham. The ground upon which the plaintiff sought relief was that the indebtedness upon which the judgment was based accrued on the 21st day of October, 1886, so far as it bound him, and not on February 1, 1886, and that his deed to his homestead was obtained and recorded May 28, 1886. The defendant denies that plaintiff is entitled to a homestead exemption in this land, for several reasons: First, that the judgment, having been rendered on a note dated February 1, 1886, forever estops plaintiff from averring that his homestead, accruing May 28, 1886, was vested prior to the debt on which said judgment was based; secondly, that plaintiff only had an undivided joint interest in a certain tract of land, in conjunction with his mother, the proceeds of which, plaintiff claims, purchased the tract in dispute, and there could be no homestead in said Central street property so held by his mother and plaintiff as tenants in common or joint tenants; thirdly, that plaintiff had by deed of trust, in which his wife had joined, conveyed all his interest in this lot to secure certain other debts; that default had been made, and the trustee. Van Valkenberg, had sold all plaintiff's interest in the lots; therefore he had no interest in the subject-matter of this action. The evidence in the case very conclusively shows, and the trial court so found, that the note upon which Leigh R. Dyer, the defendant in this action, obtained his judgment in the circuit court in December, 1889, was not in existence until October 21, 1886, and that at that date the plaintiff, Dorson P. Ingraham, for the first time, was requested to sign it, which he did, as surety for his father, Henry S. Ingraham. The note, by agreement, was antedated in pursuance of a contract between Dyer and plaintiff's father, of date October 21, 1886. The property now in question, and known as the "Wabash Avenue Property," was deeded to plaintiff on May 27, 1886; and he, with his family, went into possession of the same on June 6, 1886, and has occupied the same as a homestead ever since. The deed to said property was recorded on May 28, A. D. 1886, several months before the note upon which judgment was rendered was in existence. The court thereupon decreed herein that the note sued on in said judgment was not executed and delivered until October 21, 1886, and that prior to said date said Dyer had no cause of action against D. P. Ingraham; that plaintiff was...