Karsznia v. Kelsey

• Decision Date: 14 December 1953
• Docket Number: No. 2,No. 43500,43500,2
• Citation: 262 S.W.2d 844
• Parties: KARSZNIA v. KELSEY et al
• Court: Missouri Supreme Court

Page 844

262 S.W.2d 844

KARSZNIA v. KELSEY et al.

No. 43500.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1953.

Sluggett & Sluggett and John T. Sluggett, III, Clayton, for appellant.

Louis B. Sher and Donald J. Sher, St. Louis, for respondents.

BOHLING, Commissioner.

Frank J. Karsznia, also known as Frank J. Francis, filed an action in ejectment against Columbus Kelsey and Ella Kelsey, husband and wife, for the possession of the 'north 90 feet of Lot 447' of Riverview Gardnes, St. Louis County, Missouri. Defendants' answer was a general denial, coupled with a counterclaim asking equitable relief, including among others, that the court adjudge and decree the fee simple title in defendants. The judgment and decree was for the defendants, the court dismissing plaintiff's petition and adjudging and decreeing the fee simple title to the real estate in defendants. Plaintiff appealed.

The facts material here follow:

Defendants acquired the title to the real estate by general warranty deed, dated November 20, 1944, and duly recorded on November 21, 1944. They have resided on said premises as a homestead ever since they acquired the title.

On October 14, 1949, defendants borrowed $1,400, gave their note, payable three years after date, as evidence of said indebtedness, and secured the payment thereof by a deed of trust, recorded on October 14, 1949, on said real estate.

Subsequent to acquiring said homestead, defendants became indebted to Barbara Roth and John Roth; and on May 12, 1950, the Roths obtained a judgment on said indebtedness against defendants in the Magistrate Court of St. Louis County for $150 and thereafter filed a transcript of said judgment in the office of the Clerk of the Circuit Court of said county.

Thereafter, proceedings were had, unquestioned except as to their effect, resulting in a levy and sale at public vendue of said real estate by the Sheriff on August 28, 1950, under an execution issued on June 1, 1950 on said judgment; and a deed under the execution to A. J. Lange, the purchaser, which deed was duly recorded.

On June 3, 1950, prior to said sale, the Sheriff notified the defendants of said levy and their exemption rights, asking them to make selection of their exemptions at once. The defendants did nothing formal to claim their exemptions.

On January 10, 1951, plaintiff purchased said real estate from A. J. Lange, who conveyed by quit-claim deed. Plaintiff paid $975 for the property and assumed the deed of trust against the real estate securing the aforesaid $1,400. He had no connection with the Sheriff's sale.

Riverview Gardens is a city, incorporated town or village having a population of less than 10,000 persons. Defendants' homestead did not include more than five acres of ground and the value of their equity therein is less than $1,500. Sec. 513.475 (Statutory references are to RSMo 1949, V.A.M.S.)

Defendants' land being subject to a deed of trust, they were entitled to a homestead exemption in what remained of the total value of the land after deducting the indebtedness secured by the deed of trust. Secs. 513.475, 513.485; Reed Bros. v. Nicholson, 189 Mo. 396, 88 S.W. 71, 72(1); Farmers' Bank of Higginsville v. Handly, 320 Mo. 754, 9 S.W.2d 880, 894.

Defendants' homestead, their indebtedness to the Roths arising after its acquisition, was not subject to execution to satisfy said debt. Sec. 513.510; Sperry v. Cook, 247 Mo. 132, 152 S.W. 318; Brune v. Rathbun, Mo., 204 S.W.2d 705, 706.

Section 513.480 of our homestead law, so far as material here, provides that when an execution is levied upon real estate, part of which is subject to exemption as a homestead under Sec. 513.475, the head of the family 'shall have the right to designate and choose the part thereof to which the exemption created in section 513.475, shall apply, not exceeding the limited value; and upon such designation and choice, or in case of a refusal to designate or choose, the sheriff levying the execution shall appoint three disinterested appraisers, who shall * * * fix the location and boundaries of such homestead, and the sheriff shall then proceed with the levy of such execution upon the residue of such real estate as in other cases * * *.'

Plaintiff seeks to apply the doctrine of estoppel through silence or inaction against defendants. He argues, the Sheriff having notified defendants of the levy and their exemption rights, that defendants were required to step forward and claim their homestead at or before the execution sale, and their failure to do so should preclude their asserting a homestead at a later date to the detriment of a bona fide purchaser for value without notice. Plaintiff's authorities do not involve homestead rights. Illustrative thereof are: 19 Am.Jur. 661, Sec. 55; 31 C.J.S., Estoppel, Sec. 88, page 306; Berry v. Cobb, 223 Mo.App. 934, 20 S.W.2d 296, 298; Davis v. Lea, 293 Mo. 660, 239 S.W. 823, 826; Liese v. Sackbauer, Mo., 222 S.W.2d 84, 87; Mitchell v. Newton County Bank, 220 Mo.App. 223, 282 S.W. 729, 731. The doctrine invoked by plaintiff is not operative unless a duty to speak exists. Anthony v. Midwest Livestock Comm. Co., Mo., 260 S.W. 94, 98; State on inf. of McKittrick ex rel. City of California v. Missouri Utilities Co., 339 Mo 385, 96 S.W.2d 607, 615, 106 A.L.R. 1169. There is no obligation to disclose matters of which the other party has actual or constructive knowledge. Williams v. Reid, Mo., 37 S.W.2d 537, 542; 31 C.J.S., Estoppel, Sec. 90, page 309; 19 Am.Jur. 665, Sec. 55.

The homestead is an estate suigeneris. It is governed by the homestead law, can only be sold in pursuance to the provisions of that law, and is not subject to the general law relating to the descent and distribution of estates. The homestead law is a code unto itself, having for its purpose the safekeeping of the homestead for the householder, his widow...