Ingraham v. Dyer
| Decision Date | 18 December 1894 |
| Citation | 28 S.W. 840,125 Mo. 491 |
| Parties | Ingraham v. Dyer, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Affirmed.
Frank Titus for appellant.
(1) The judgment in case number 3313 can not be collaterally attacked as in this case. It is res judicata. The date of execution of the note sued on is a fact admitted by defendant there plaintiff here. It is a fact decided in, and necessary to the judgment, and is conclusive on all parties. Kopp v Blessing, 121 Mo. 391; Nave v. Adams, 107 Mo. 415; Irvine v. Leyh, 102 Mo. 200; Health v. Frackleton, 20 Wis. 320; Chilton v. Reeves, 29 Texas, 281; Belvidere v. Railroad, 34 N. J. Law, 197; Outram v. Morewood, 3 East, 346; Burden v. Shannon, 99 Mass. 203; Railroad v. Blossbargh, 20 Wall. 137; Goodenow v. Litchfield, 59 Iowa 226; Whitehurst v. Rogers, 38 Md. 503; 2 Black on Judgments, secs. 691, 692, 759, 970, 971; 2 Freeman on Judgments [4 Ed.], sec. 435; 1 Herman on Estoppel, pp. 117, 122, 308, 548, 549. (2) The date of a promissory note is a material part of the instrument. Owings v. Arnot, 33 Mo. 406; Capitol Bank v. Armstrong, 62 Mo. 59; Wood v. Steele, 6 Wall. 80; Stephens v. Graham, 7 Serg. & R. 505; 1 Randolph on Com. Paper, sec. 84. (3) Defendant's objection to the testimony should have been sustained. No fraud was alleged in obtaining the judgment in number 3313. Ingraham had his day in court and could have then pleaded the matters he now pleads. Shelbina Hotel Ass'n v. Parker, 58 Mo. 327; Kelly v. Hurt, 74 Mo. 561; Freeman on Judgments [4 Ed.], sec. 337; Beloit v. Morgan, 7 Wall. 619; Hempstead v. Watkins, 6 Ark. (1 English) 317; Davis v. Shafer, 50 F. 764; McLaws v. Moore, 83 Geo. 177; Lamb v. McConkey, 76 Iowa 47; Tadlock v. Eccles, 20 Texas, 782, 791; Thompson on Homestead, sec. 715; 1 Herman on Estoppel, p. 260. (4) Dyer's cause of action being in existence at the time that Ingraham acquired the land in Pendleton Heights, claimed as homestead, takes precedence of the homestead claim. R. S. 1889, sec. 5441; Lincoln v. Rowe, 64 Mo. 138; Tennent v. Pruitt, 94 Mo. 145; Freeman on Executions, sec. 249; Fish v. Hunt, 81 Ky. 584. And aside from the date of the note sued on in case 3313 the cause of action evidenced by said note existed from the moment Henry S. Ingraham became debtor to Dyer, in December, 1885, or the first of February, 1886. Montgomery Co. v. Auchley, 92 Mo. 130; Green v. Cole, 103 Mo. 76; Jackson v. Bull, 1 Johns. Cases, 81. (5) Plaintiff's testimony that he was surety and not maker of the note sued on in case 3313 was inadmissible. A surety who has signed note as maker can not contradict or vary the writing as he made it. Jones v. Shaw, 67 Mo. 670; Sparks v. Dispatch Company, 104 Mo. 541. Such testimony is doubly illegal where surety is sued and judgment rendered against him as maker. Brandt on Suretyship, secs. 209, 210, 536. (6) Plaintiff had no pretense of lawful claim to homestead prior to filing his deed May 28, 1886. He could have no homestead in Central street land held by his mother and himself as tenants in common or joint tenants. Case v. Joyce, 89 Tenn. 337. Ward v. Huhn, 16 Minn. 142; Fitzgerald v. Fernandez, 71 Cal. 504; Brown v. Keller, 32 Ill. 151; Wolf v. Davis, 5 Cal. 244; Waples on Homestead, pp. 131, 137. And the proceeds of the Central street land never came to plaintiff. They were kept and used by H. S. Ingraham, who repaid the loan some two years after. This lapsus is too extended to maintain a homestead even if one existed before sale. Thompson on Homestead, sec. 303; Cabeen v. Mulligan, 37 Ill. 230; Dutton v. Woodbury, 24 Iowa 74. And if any homestead right accrued to plaintiff in the Pendleton Heights lots under the deed to him filed May 28, 1886, he by joint deed of himself and wife to Van Valkenburgh, dated December 6, 1890, conveyed it away; and the sale of said land under such deed, before the trial of this cause, should have precluded plaintiff from obtaining herein an allotment of homestead as against his judgment creditor. Kopp v. Blessing, 121 Mo. 391; Conn. Mut. Life Co. v. Jones, 8 F. 303; Babcock v. Hoey, 11 Iowa 375; Bowman v. Norton, 16 Cal. 214; Chamberlain v. Leyll, 3 Mich. 449; Greer v. Major, 114 Mo. 145. In Missouri a trustee has the legal title to land after condition broken. Johnson v. Houston, 47 Mo. 227; Schanewerk v. Hoberecht, 117 Mo. 22. But, whether such conveyance to trustee passed the homestead right or not, the absolute deed made by trustee Van Valkenburgh to John Look, October 24, 1893, assuredly extinguished the homestead. (7) Plaintiff's bill fails to state a case in equity. No fraud in defendant's judgment is set out. Irvine v. Leyh, 102 Mo. 207. The decree herein virtually annulling the judgment in case 3313 on the grounds in bill that Asa Ingraham, a stranger to this suit, was not summoned, is wholly indefensible. State ex rel. Ozark Co. v. Tate, 109 Mo. 265.
Lewis H. Hatfield for respondent.
(1) The weight of authority in the United States is that evidence may be produced and is admissible to show that one of two or more joint makers of a promissory note executed the same as a surety. 2 Daniels on Negotiable Instruments, p. 310; Parsons on Notes and Bills [1 Ed.], p. 233; Randolph on Commercial Paper [1 Ed.], p. 225; 2 Wharton, Law of Evidence [2 Ed.], secs. 952, 1060, et seq.; Greenleaf on Evidence [15 Ed.], sec. 281, note 10; Horne v. Bodwell, 5 Gray, 457; Wilson v. Green, 25 Vt. 450; Rose v. Williams, 5 Kan. 489; Parry v. Hodriett, 38 Ga. 104; Hubbard v. Gurney, 64 N.Y. 457; Dairs v. Burrington, 50 N.H. 517; Bank v. Hoge, 6 Ohio 17. (2) A homestead right exists when occupied as such and acquired in accordance with the provision of the statutes in estates held by joint tenants or tenants in common. Thompson on Homesteads and Exemptions [1 Ed.], secs. 180-181, et seq.; Freeman on Cotenancy and Partition [1 Ed.], sec. 54; Horn v. Tufts, 39 N.H. 483; Hewitt Rankin, 41 Iowa 35; McClary v. Bixley, 36 Vt. 254; Ward v. Mayfield, 41 Ark. 94; Brown v. McLennem, 60 Tex. 43; Farrant v. Swain, 15 Kan. 146; In re Swearinger, 5 Sawyer, C. C. 52; McGrath v. Sinclair, 55 Miss. 89; Sherrid v. Southwick, 43 Mich. 515; Hasar v. Hass, 27 Minn. 406; Snedecor v. Freeman, 71 Ala. 140; Skouten v. Wood, 57 Mo. 380. (3) No cause of action existed in favor of Dyer against the plaintiff herein, until October 21, 1886, the day he signed the note, and he acquired his homestead interest in what is known as the Wabash avenue property, when his deed was recorded, and he went into possession on June 6, 1886. A fortiori there can be no question but that he is entitled to said property as a homestead free of any judgment lien in favor of Dyer, independent of the question of his having a homestead in the Central street property. R. S. 1889, secs. 5435-5441; Casebolt v. Donaldson, 67 Mo. 308. (4) A homestead purchased with the proceeds of a former homestead is exempt from execution and attachment. R. S. 1889, sec. 5442; Smith v. Enos, 91 Mo. 579; Kendall v. Powers, 96 Mo. 142. (5) Plaintiff's petition states a cause of action against the defendant for the reason that a bill in equity will lie to secure relief from a cloud cast upon title by levy or sale under execution, and is the proper remedy to prevent such levy and sale or remove the same when made. Bank v. Evans, 51 Mo. 335; Martin v. Jones, 72 Mo. 26; Church v. Hintze, 72 Mo. 364; Haenssler v. Thomas, 4 Mo.App. 470; Oakley v. Williamsburgh, 6 Paige (N. Y.), 262; Hinckley v. Haines, 69 Me. 76; Colley v. Duncas, 47 Ga. 668 (474); Judd v. Hatch, 31 Iowa 491; Tucker v. Kennston, 47 N.H. 267; Bank v. Schultz, 26 Ohio St. 471; Uhe v. May, 5 Neb. 157; Lewton v. Homer, 18 Fla. 872; Asher v. Mitchell, 92 Ill. 480.
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 v. Henry S. Ingraham, Asa Ingraham and Dorson P. Ingraham on the fourth 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 the 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 twenty-first 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 pla...
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