Kelley v. Parman

• Citation: 282 S.W. 755
• Decision Date: 22 April 1926
• Docket Number: No. 3870.,3870.
• Parties: KELLEY v. PARMAN.
• Court: Court of Appeal of Missouri (US)

282 S.W. 755

KELLEY v. PARMAN.

No. 3870.

Springfield Court of Appeals. Missouri.

April 22, 1926.

Error to Circuit Court, McDonald County; Chas. L. Henson, Judge.

Action by James O. Kelley against James Parman. Judgment for plaintiff, who levied execution on defendant's land. Defendant's motion to quash levy was overruled, and he brings error. Reversed and remanded, with directions.

J. P. Joines, of Neosho, and Schmook & Sturgis, of Springfield, for plaintiff in error.

Lon Kelley, of Pineville, for defendant in error.

COX, P. J.

James C. Kelley recovered a judgment against James Parman before a justice of the peace in McDonald county for the sum of $112.85 and costs amounting to $24.20. A transcript of this judgment was filed with the clerk of the circuit court and execution issued on this transcript judgment. The execution was levied upon the undivided interest of James Parman in certain lands in McDonald county. Mr. Parman filed in the circuit court from which the execution was issued a motion to quash the levy on the ground that the land levied upon was his homestead and therefore exempt from execution. This motion was overruled, and Parman then sued out writ of error in this court.

The evidence for the defendant in the execution, as far as pertinent here, tended to show that the land had belonged to his father, who occupied it as a homestead at the time of his death; that his father left a widow, the mother of the defendant, James Parman, and that after the death of the father he continued to reside on the, homestead with his mother and supported her. He was single and an heir of his father, who had died intestate. There was some evidence of a parol partition of the land by the father in his lifetime, which we do not regard as conclusive or material at this time. The evidence for the judgment creditor tended to show that the mother supported herself, and that the son, James, merely lived with her, and that he was not the head of a family. The court having overruled the motion to quash the levy must have found that issue of fact against the judgment debtor, James Parman, and we are not disposed to disturb that finding.

Another question is raised in this court, to wit, that it is conclusively shown that the mother of James Parman had a homestead in this land, and by reason of that fact the levy should have been quashed. The facts on which that question is to be determined are briefly as follows: The father of James Parman lived upon and occupied the land levied upon as a homestead. He died while so occupying the land and left a widow, who now occupies the land as her homestead. The interest of James Parman in the land is that of heir of his father. The question is, Can the interest of an heir of a deceased husband in land which the widow occupies as a homestead derived from him be sold under execution against the heir during the life of the homestead?

It has been uniformly held by the courts of this state that the remainder in lee in the land covered by the homestead cannot be sold by order of the probate court, nor upon execution, subject to the homestead, to pay debts of the deceased during the life of the homestead. Among the cases so holding are the following: Armor v. Lewis, 101 S. W. 251, 252 Mo. 56S; Dennis v. Gorman, 233 S. W. 50, 289 Mo. 1; Moore v. Wilkerson, 68 S. W. 1035, 169 Mo. 334; Broyles v. Cox, 54 S. W. 488, 153 Mo. 242, 77 Am. St. Rep. 714; In re Estate of Powell, 57 S. W. 717, 157 Mo. 151; Lewis v. Barnes, 199 S. W. 212, 272 Mo. 377; Patton v. Buxton (Mo. Sup.) 238 S. W. 118; in re Rombauer Estate (Mo. Sup.) 250 S. W. 1066; McMichaels v. Reece, 190 S. W. 51, 194 Mo. App. 363.

One of the chief reasons assigned for holding that the remainder in fee cannot be sold subject to the homestead to pay debts of the deceased is the great uncertainty as to the possible duration of the...