Jackson v. Bowles

• Decision Date: 30 April 1878
• Citation: 67 Mo. 609
• Parties: JACKSON v. BOWLES et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 609

JACKSON

v.BOWLES et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Cooper Circuit Court.--HON. G. W. MILLER, Judge.

John Cosgrove for appellants, made the following, among other points: At the death of Fanny Bowles the title of the real estate in question vested in appellants by operation of law. (Wag. Stat., p. 529, § 1.) They owed Jackson nothing at that time. More than two months afterwards they gave their note to Jackson and took up her note. Certainly there was no debt owing by them to respondents at the time they became seized of the premises in suit. Their deed, so to speak, is of date at the death of their mother. Hence Shindler v. Givens, 63 Mo. 394, and Lincoln v. Rowe, 64 Mo. 138, are not applicable to this case, and instruction number 3, given to respondents, should have been refused. The debt upon which the first suit was brought was treated by respondents as the debt of appellants, and no attempt was made to collect it out of the estate of Fanny Bowles. The court erred in not giving instructions numbers 5 and 7, asked by appellants. This was a proper question for the jury to pass upon under the evidence. The surrender of the note of Fanny Bowles to appellants by Jackson, and the acceptance of their note of date May 9th, 1872, was a payment prima facie at least, and the retention of appellants' note and the bringing of suit thereon by Jackson, without offering to return the same, made it a payment of the debt of Fanny Bowles. Edwards on Bills & Notes, (2 Ed.) 546; Appleton v. Kennon, 19 Mo. 640; Lawson v. Gudgel, 45 Mo. 480.

Draffen & Williams for respondents, made the following, among other points: 1. The appellants derived title to the property, by inheritance, from their mother. Their interest was subordinate to that of her creditors, and they could not claim the property against debts which she owed. Not being within the provisions of section 5 of the homestead act, being both of age, they could have no homestead in the lot against creditors of her estate. Their homestead rights could not attach until her debts were paid. The plaintiff, Jackson, had a claim against her estate, and if the substitution of their note for that of their mother be regarded as a payment of her debt, then they did not acquire the homestead until their note was accepted, and under section 7 of the homestead law, as the debt had become theirs and existed at the time of acquiring the homestead, the property was not exempt as against that debt, and the plaintiff's second instruction was rightly given. Sloan v. Waugh, 18 Iowa 224. 2. The appellants' first instruction was properly refused. In addition to leaving out of view the provision of section 7, it only required the jury to find that defendants were living upon the property at the time of the sale; not at the time of the levy.

NORTON, J.

This is an action of ejectment to recover part of lot 5 in the city of Boonville. The answer of defendants admits that they were in possession of the property, but denies the right of plaintiffs to recover, and alleges that plaintiffs' claim to said property is founded on a purchase made by them in October, 1874, at a sale made by the sheriff of Cooper county, under an execution issued on a judgment against defendants and in favor of plaintiff Jackson; that at the date of the levy and sale by the sheriff they were entitled to hold and claim the said premises as a homestead; that they were housekeepers and heads of families, and resided, at the date of the levy and sale, on said premises and were keeping house thereon; that the premises did not exceed thirty square rods of ground, nor exceed in value $1,500, and that the city of Boonville, where the lot was situated, did not contain more than 40,000 inhabitants; that prior to said sale they caused the sheriff to be notified of their claim. The plaintiffs, by replication, put in issue the new matter set up in the answer and further pleaded that the house and lot in controversy was purchased by one Fanny Bowles, who was the mother of the defendants and from whom they inherited the property, and that plaintiff, Andrew Jackson, loaned her a part of the money to pay for the same and received her note therefor; that she departed this life, and when he was about to have her estate administered upon and his demand probated, and said property sold to pay off said claim, the defendants, for the purpose of inducing and procuring the plaintiff, Andrew Jackson, to grant an extension of time for the payment of said note and to prevent the sale of said property, did by themselves and their attorney represent and state to said plaintiff that they were the sole heirs to said property, and that if he would accept and receive their note, and surrender and deliver up the note of their said mother, for the payment of which the property in controversy was liable and subject, and not cause the same to be sold, his debt would still continue to be equally secure and the property would remain as liable in their hands for its payment as before; that, being ignorant and unlearned, he was induced by the representations and actions of said defendants and their attorney to take the note of the defendants in exchange for the note of their mother, and that, they afterwards refusing to pay the same, he obtained judgment upon said note and sold said property, and that it would be a fraud upon the plaintiffs to allow the defendants now to set up any such claim; and that by their acts and conduct they were estopped from claiming a homestead in said property; and, further, that said debt under which the property was sold accrued long prior to the time when the defendants acquired said property, and that, as against said debt, the defendants were not entitled to a homestead in said lot, and that there could be no homestead in property owned by tenants in common. On the trial judgment was rendered for plaintiffs, from which the defendants have appealed to this court.

A reversal of the judgment is sought because of the alleged errors of the trial court in overruling defendants' motion to strike out parts of replication; in sustaining the motion of plaintiffs (filed while the motion of defendants for a new trial was pending) asking that the judgment be set aside and the suit dismissed as to Lizzie Myers, and the entry of judgment against defendants in accordance with the verdict, and in giving improper and refusing proper instructions.

1. PLEADING: practice in Supreme Court.

1. The motion to strike out parts of replication does not sufficiently designate the parts thereof sought to be stricken out, and for that reason the action of the court in overruling it cannot be considered here. The motion asks that all that portion of the replication setting up new matter and included in brackets be stricken out. No such indications appear in the record before us, and under the authority of Pearce v. McIntyre, 29 Mo. 423, we cannot look into it.

2. PRACTICE.

2. Nor do we perceive any error in the action of the court in setting aside the judgment and permitting plaintiffs to dismiss the suit as to Lizzie Myers, against whom a default had been taken and judgment rendered, it appearing after the rendition of judgment that she was a married woman. This being done at the same term at which the judgment was rendered was permissible under sections 3 and 6, Wag. Stat., p. 1034. Thompson v. Mosely, 29 Mo. 477.

The evidence on the trial tended to prove the respective theories relied upon by parties in the answer and replication, and, no point having been made on its admissibility, the only remaining question for disposition arises out of the action of the court in giving and refusing instructions. The following instructions were given for plaintiff, to which defendants excepted: 1. The first is substantially as follows: that the sheriff's deed passed the title to the lot to the plaintiff, unless the defendants were entitled to a homestead therein. 3. The jury are instructed that, if they shall find from the evidence that Fanny Bowles, prior to her death, was indebted to the plaintiff, Andrew Jackson, for money borrowed to pay off an incumbrance on said property, and that she was then the owner of said property sued for, and that these defendants acquired title to said property by inheritance from said Fanny...