Keeline v. Sealy

• Decision Date: 02 April 1914
• Docket Number: No. 16,485.,16,485.
• Parties: KEELINE v. SEALY et al.
• Court: Missouri Supreme Court

165 S.W. 1088

257 Mo. 498

KEELINE v. SEALY et al.

No. 16,485.

Supreme Court of Missouri, Division No. 1.

April 2, 1914.

Rehearing Denied April 13, 1914.

1. HOMESTEAD (§ 167)—CONVEYANCES—EFFECT.

Where a homestead claimant conveyed the property to P., who thereafter reconveyed the same to claimant, and there was no independent consideration for either deed, they did not disturb the continuity of homestead, nor affect the claimant's homestead exemption.

2. HOMESTEAD (§ 5)—EXEMPTION—CONSTRUCTION.

Statutes granting homestead exemption are intended to protect the homes of the poor and financially unfortunate, and should be liberally construed.

3. HOMESTEAD (§ 216) — EXEMPTIONS — INSTRUCTIONS.

An instruction that the judgment by E. against J. became a lien on her real estate from the date of its rendition, unless the jury found that such real estate was her homestead, and "continued so to be for three years from that date," and that any sale or transfer thereof by J. during such three years did not affect the lien, but the purchaser took subject thereto, and, unless the land was her homestead as stated in the instructions, it was subject to the levy regardless of the transfers, was erroneous, as misleading the jury to believe that, unless the land was J.'s homestead during the entire three years, it was subject to levy and sale at any time during that period.

4. HOMESTEAD (§ 216)—ABANDONMENT—REMOVAL —PRESUMPTION—INSTRUCTIONS.

An instruction that the removal of the debtor from the property in controversy which she claimed as her homestead constituted a prima facie case of abandonment, and raised a presumption against the claim of homestead, and placed on her the burden of showing an intention to return, which must be rebutted before such claim can be successfully asserted, and it must be shown that the removal was only temporary with an evident intention of reoccupancy, was erroneous and prejudicial, where the circumstances surrounding the debtor's removal from the property in themselves indicated no intention on her part not to return.

5. HOMESTEAD (§ 216)—ABANDONMENT—INTENTION TO RETURN—INSTRUCTIONS—MODIFICATION.

On an issue as to abandonment of a homestead, defendants requested an instruction that, if the jury believed that, when the debtor left the premises and went to a hotel, she intended to return, and at all times thereafter until she sold the premises to her father intended to return and make the same her home, then she did did not abandon the property in the legal sense. The court gave the instruction, after adding thereto a clause that, in finding whether there was an abandonment of certain other property as well as that in controversy, the jury should find the question of her intent or nonintent to return to "these places and make them her home from all the facts and circumstances in the case." Held, that such modification was erroneous, as including property not in controversy, and also permitting the jury to determine the question from the "facts and circumstances" instead of from the evidence.

6. TRIAL (§ 234)—EVIDENCE—LIMITATION— INSTRUCTIONS.

Where, in an action involving the abandonment of a debtor's homestead, the court admitted evidence indicating that she, after removing from the property, had conducted a bawdy-house solely as bearing on her credibility, an instruction authorizing the jury to consider such proof on the question of abandonment was erroneous.

7. TRIAL (§ 236)—INSTRUCTIONS—CREDIBILITY OF WITNESSES.

Where, in an action involving a debtor's abandonment of a homestead, evidence had been admitted to affect her credibility indicating that, after she had removed from the homestead, she had operated a bawdyhouse, an innuendo and suggestion had been relied on in the presentation of the case to attack the character of her business, an instruction that, in determining the credibility of witnesses, the jury "will" consider the witness' interest, if any, in the result of the trial, his or her relation or feelings towards the parties, the probability of his or her statements, as well as the facts and circumstances in evidence, was erroneous.

Graves, J., dissenting in part.

Appeal from Circuit Court, Jackson County; R. B. Middlebrook, Judge.

Action by Oscar Keeline against Fred Sealy and Mary F. Shawhan, for herself and as executrix of George H. Shawhan, deceased. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Ejectment for a house and 40-foot lot in Kansas City designated in the briefs of counsel as 2536 Agnes avenue, and for short the "Agnes" property. The common source of title is Margaret L. Johnston. Plaintiff claims through a sheriff's deed to himself, dated June 7, 1909, in pursuance of a sale under execution issued March 23, 1909, upon a judgment of the Jackson circuit court recovered by E. H. Evans against the said Margaret L. Johnston, September 29, 1906, for $1,641.25. This judgment was founded upon a promissory note dated March 2, 1905, for $1,500, with interest at 6 per cent. per annum, principal and interest payable in installments of $50 per month beginning May 1, 1905. Another sheriff's deed was introduced by plaintiff on the trial, dated March, 1906, founded upon a judgment by a justice of the peace, rendered December 19, 1905, for $218.75 upon a promissory note from Mrs. Johnston to F. H. Evans of the same date for $215. Also a quitclaim deed from Evans to plaintiff, date not in the record, but recorded July 23, 1906. This last sheriff's deed is the same in question in case No. 15,613, of the same title as this, determined at this term, and will not be noticed further. Plaintiff also introduced a warranty deed dated March 29, 1905, and recorded the same day, from Mrs. Johnston to Mollie J. Page, conveying the same land, and a deed from Mollie J. Page to Mrs. Johnston dated March 30, 1905, and recorded August 17, 1905, conveying same land, both subject to deed of trust to Powell, trustee, for $1,750.

The defense is founded entirely upon the assertion that, at the time of the creation of the debt for which the Evans judgment was rendered, and continuously up to January 16, 1907, when she conveyed to George H. Shawhan, her father, the land in question was the homestead of Mrs. Johnston. It was formally admitted upon the trial that it did not exceed in value or quantity the amount allowed by statute to the head of a family as a homestead, and there was no question raised as to the fact that Mrs. Johnston, from about June 20, 1904, up to some time in April, 1905, resided in the six-room house upon the lot with her son, then about ten years old. They continued to live there until some time in April, 1905. At about the time she purchased the house and moved into it, she brought suit against her husband, John P. Johnston, for divorce, and obtained it in October or November of the same year. The plaintiff's contention is that, at the time she left the house in the spring of 1905, or at some future time previous to her conveyance to her father, she abandoned it as a homestead, so that the lien of the Evans judgment attached and the title passed by the sale under the Evans judgment. The abandonment is denied by the defendants, and this constitutes the only issue made in the case.

Mrs. Johnston purchased the property from Mollie J. Page, taking a warranty deed therefor dated June 17, 1904, in which the consideration was expressed to be $3,750, and subject to a deed of trust secured by the grantor June 15, 1904, to George A. Welsh, in trust to secure to the City Lot Company the payment of a promissory note of that date for $1,750, due five years after date, with semi-annual interest coupons for the interest at 6 per cent.; also to another deed of trust of the same date from the same grantor to Walter A. Powell, in trust to secure the payment to Lillian C. B. Diehl of a collateral promissory note securing notes payable as follows: $25 on or before July 15, 1904; $25 on or before August 15, 1904; $250 on or before September 15, 1904; and $1,450 in monthly installments of $25 each, payable on or before the 15th day of October, 1904, and on or before the 15th day of each succeeding month thereafter until the whole amount is paid, with interest on each installment at 6 per cent. per annum, payable at maturity. On November 29, 1905, Mrs. Johnston placed a third deed of trust upon the land to secure the payment to Joseph E. Brown of 21 promissory notes each for the sum of $54, falling due monthly.

Mrs. Johnston, in 1889, married one Lackey, from whom she secured a divorce after having lived with him about four years. Her only children were born of this marriage; the elder, a daughter, who has lived with her grandparents a greater part of the time since her birth, and was educated by them, and the son, Edgar born soon after the divorce. She afterwards married one Spencer, who lived with her in her house at Lone Jack, in Jackson county, about a year, and then they went to Independence, and finally to Kansas City, where she was divorced from him in 1899. Her mother, Mrs. Shawhan, had started a rooming and boarding house at 710 East Fourteenth street, and, when her parents left Kansas City and went to Weston to live in 1900, Mrs. Johnston took it, lived there with her son, and ran it until about two weeks before she purchased the Agnes property, when she sold the furniture which had been left in the house by her mother, and vacated it.

After the divorce Johnston brought Evans, said to be the owner of the East End Hotel, out to the Agnes avenue house, accompanied by J. C. Bliss, a cattle killer at one of the packing houses, to see about the purchase of that hostelry. They all told her it was a good place, and she could make some money there, and she bought it, giving Evans the note upon which this judgment was rendered, and the note for $215, upon which the justice's judgment we have already referred to was founded.

Of this "purchase" Mr. Bliss says...