Kendall v. Powers

• Decision Date: 18 June 1888
• Citation: 8 S.W. 793,96 Mo. 142
• Parties: Kendall et al., Appellants, v. Powers
• Court: Missouri Supreme Court

8 S.W. 793

96 Mo. 142

Kendall et al., Appellants, v. Powers

Supreme Court of Missouri

June 18, 1888

Appeal from Linn Circuit Court. -- Hon. W. H. Brownlee, Special Judge.

Affirmed.

A. W Williams for appellants.

(1) Neither Cummins nor the defendant who claims under him can question the validity of the conveyance from Cummins and wife to Crampton, and from Crampton to Eliza Cummins, on the ground of fraud or want of consideration. As to them these conveyances are valid. Jacobs v. Smith, 89 Mo. 673; Larimore v. Tyler, 88 Mo. 661, 668; Bump on Fraud. Conv. 444, 446, 533. (2) The record discloses that C. G Cummins was the absolute owner in fee-simple of the property in question, and while he was such owner, he and his wife Eliza Cummins, conveyed said property to Thomas Crampton, Jr., by a deed of general warranty, and then on the same day said Crampton conveyed back by deed said real estate to said Eliza Cummins, and that she thereafter on the same day died, leaving her husband and six children, born of the marriage between her and said C. G. Cummins, surviving her. The said C. G. Cummins then, upon the death of his wife, became possessed of an estate for life, as tenant by the curtesy, in and to the premises in question. 1 Wash. on R. P. [2 Ed.] 129; Tiedeman on R. P. secs. 101-109; Moore v. Ivers, 83 Mo. 29; Stephens v. Hume, 25 Mo. 349; Reaume v. Chambers, 22 Mo. 36; Alexander v. Warrance, 17 Mo. 228; Keyte v. Peery, 25 Mo.App. 394. (3) The estate of said C. G. Cummins in and to said property as tenant by the curtesy, was subject to sale under execution against him. R. S., sec. 2354; Freeman on Ex., sec. 186; 1 Wash. on Real Prop. [2 Ed.] 143. (4) As tenant by the curtesy, the said C. G. Cummins could not hold the said premises exempt from levy and sale under execution under the homestead laws. "If a married woman own land by general title, occupying it as a homestead, and dies, leaving a husband and minor children, there is no provision of law for the continuation of the homestead in either the husband or children." Keete v. Peery, 25 Mo.App. 394; Thompson on H. and Ex. sec. 300; R. S., secs. 2689, 2693. And for two other reasons the said Cummins had no right to hold said premises as his homestead, as against the plaintiffs: (1) Because he had contracted the debt to plaintiffs before his title as tenant by the curtesy had accrued to him; and (2) because he had no deed of record to the premises. R. S., sec. 2695; Thompson on Hom. and Ex., sec. 300; Griswold v. Johnson, 22 Mo.App. 466; Shindler v. Givens, 63 Mo. 394. (5) It follows from an application of the law, controlling this case, to the undisputed facts disclosed by the record, that the instructions asked by the plaintiffs and refused by the court should have been given, and that the defendant's instructions should have been refused, and judgment rendered for plaintiffs.

J. B. Wilcox for respondent.

Black J. Ray, J., absent.

OPINION

Black, J.

This suit of ejectment was commenced on the fourteenth of November, 1884, to recover the possession of several lots in the town of Linneus, containing in all about an acre and a half of land, and valued at five or six hundred dollars.

The facts are these: On the thirty-first of December, 1881, the plaintiffs obtained a judgment against C. G. Cummins for $ 787.09, under which the property was sold on execution and purchased by the plaintiffs on the twelfth of June, 1884. At the date of the judgment, Cummins had a wife and six children. He then and for a long time previous thereto resided on the property. On the twenty-second of November 1881, a few days before the date of the judgment, he and his wife conveyed the property to Crampton, who at the same time conveyed it back to Mrs. Cummins, and she died on the same day. In March, 1884, Cummins and his second wife conveyed the property to the defendant, and at the same time Cummins, as curator of his children, conveyed, or attempted to convey, their interest in the property to defendant. There is evidence tending to show that these deeds were made as a security for money loaned Cummins; other evidence is to the effect that the transaction was an out and out sale, with a right on the part of Cummins to re-purchase the property,...