Kennedy v. Duncan
| Citation | 137 S.W. 299,157 Mo.App. 212 |
| Parties | MILLIE J. KENNEDY'S ADMINISTRATOR, Respondent, v. ROBERT C. DUNCAN, Appellant |
| Decision Date | 02 May 1911 |
| Court | Missouri Court of Appeals |
February 8, 1911, Submitted on Briefs
Appeal from Lincoln Circuit Court.--Hon. James D. Barnett, Judge.
Judgment affirmed.
Charles Martin for appellants.
(1) The property used and occupied by the plaintiff in the town of Olney was her homestead. She and her husband had lived there for eighteen years and had no other home. She continued to live there and use it as her home after her husband's death. Peake v. Cameron, 102 Mo. 568; Thompson Homestead, sec. 411. (2) The deed made to their daughter in March, 1899, was made to defraud their creditors, and notwithstanding that deed plaintiff still had a life estate in the Olney property. Sharp v. Stewart, 185 Mo 518. (3) Plaintiff is not entitled to dower in the farm land if her homestead in Olney equals or exceeds one-third in value of both. Revised Statutes 1899, sec. 3621. (4) If the homestead does not equal one-third in value of both pieces of property, then her dower in the farm land must be diminished by the value of the homestead. Graves v. Cochran, 68 Mo. 74; Bryan v. Rhodes, 96 Mo. 485.
Wm. A Dudley for respondent.
(1) Mere occupancy of land as a home does not establish a right to homestead. No deed, descent or devise of the lot 49 to either plaintiff or her husband was shown. R. S. 1899, secs. 3616 and 3622; Tennett v. Pruitt, 94 Mo. 145; Kimbler v. Walker, 165 Mo. 25; Stinson v. Call, 163 Mo. 323. (2) Creditors are not concerned in the homestead of debtors. Peche v. Cameron, 102 Mo. 568; Grimes v. Portman, 99 Mo. 229; Starn v. Smith, 183 Mo. 464; Welch v. Mann, 193 Mo. 304. (3) The conveyance of Lot 49 being absolute no mere indulgence or verbal permission to occupy would create a life estate in Mrs. Kennedy. She was subject to ejectment at any time. Hall v. Small, 178 Mo. 629 and cases cited.
By her petition filed in the circuit court of Lincoln county, Mrs. Millie J. Kennedy, alleged that she was the widow of one Armstrong L. Kennedy, and that during the lifetime of her husband he was seized of an estate of inheritance in 80 acres of land in Lincoln county (describing it, and hereafter referred to as the acre tract or property) and that the land was sold under execution against her husband to one Perkins; that Perkins, The Farmers & Mechanics Bank, and others claiming under judgment or sheriff's sales, conveyed it by warranty deed to one Morris; that Morris by warranty deed, conveyed it to defendant in 1904. Averring that she had never relinquished dower in the land and had made demand for assignment thereof of defendant, which had been refused, plaintiff prays judgment for $ 100 damages and $ 10 per month for rents and profits and that her dower interest in the land be estimated and computed at its present worth. Other parties were also joined as defendants but the action was dismissed as to them.
The answer, denying the allegations of the petition, avers that at the time of the sale to Perkins, which was in 1900, and for a long time prior thereto, plaintiff's husband was the owner of three certain lots in the town of Olney in Lincoln county, one known as lot No. 49, on which was situated a dwelling house and other improvements belonging thereto and which then was, and for a long time prior thereto had been, occupied and enjoyed by plaintiff's husband and by plaintiff as their home; that they continued to use this Olney property as their homestead up to the time of the death of the husband and that since then plaintiff, as his widow, has used and occupied and enjoyed the Olney property as her homestead. It is further averred that this homestead property exceeds one-third in value of both the homestead property and the acre property and being the homestead of plaintiff and exceeding one-third in value of both of said pieces of property, plaintiff was not entitled to dower in the acre property. The only town lot finally in issue was lot 49, the two others not being considered.
A general denial was filed by way of reply.
The trial was before the court, a jury being waived. A deed, of date 1890, conveying the acre property from one McCormick to plaintiff's husband, the sheriff's deed to Perkins, the deeds from Perkins and others to one Morris, and from Morris to defendant Duncan, the latter dated 1904, were in evidence. Plaintiff also introduced in evidence the record copy of a deed from plaintiff and her husband, of date March 1, 1899, conveying to M. J. Downing "and to her bodily heirs and if she shall die leaving no bodily heirs then to her nearest blood kin," the acre property and also this lot No. 49 in the town of Olney, that deed duly filed for record and recorded on October 5, 1899, in the recorder's office of Lincoln county.
There was no dispute as to the present possession of defendant of the 80 acres. The evidence was conflicting as to the value of the acre property as well as of lot 49 and as to the value of the rents and profits of each of them. It is unnecessary to notice this evidence of values; the value arrived at and fixed by the trial court is sustained by sufficient evidence and is accepted by us as conclusive on that.
By way of an attack on the deed from plaintiff and her husband to Mrs. M. J. Downing, who was their daughter, and who, it appears, is dead, leaving a child surviving her, defendant offered in evidence a judgment of the circuit court of Pike county, setting aside this deed so far as it included the 80 acres alone. This judgment was entered in a suit by The Farmers & Mechanics Bank, a creditor of plaintiff's husband, it being adjudged that the deed, so far as it purported to convey the 80 acres to Mrs Downing, was without any consideration and that the conveyance was fraudulent and void as against the plaintiff in that suit. We understand counsel to agree that this judgment did not include the town lot. Nor is there any evidence in the case that the town lot was included in the action. It was admitted that the determination in that case, that the conveyance was fraudulent as to the attacking creditor, rested on the fact that the deed to Mrs. Downing from her father and mother was without consideration. At this present trial defendant offered in evidence, in connection with the judgment in the bank case, depositions which had been taken and used, as we understand it, in that suit, the depositions being those of plaintiff and her husband. It appeared by these depositions that when they were taken both were living and making their home on this town lot 49. Plaintiff's husband deposed that when he had made the deed to his daughter, she was then married, living about 20 miles from him, and had two children; that he did not know whether his daughter knew at the time that the deed to these pieces of property had been drawn up, but he had told her of them after he had made and acknowledged them; had filed the deed for record himself. It had remained in his house and in his possession until he sent it for record and he had not delivered it to his daughter until after filing it for record. When he told her he had made it, she said that it was just what she had been looking for for a good while; that she had expected it for some time. His daughter did not pay him anything for the land or the lot. When he conveyed this property to his daughter he did not have enough to make her equal with his other children. When he bought the place he had bought it for her and "it was generally known in town that it was M. J. Downing's place."
These depositions and the judgment of the Pike County Circuit Court when offered were objected to by plaintiff. The court, without at the time passing on the objections, said he would take the evidence subject to the objections. He did not specifically pass on them, but from his judgment in this case he evidently disregarded all this testimony.
There was no dispute of the fact of possession by defendant. The Olney lot did not contain 5 acres.
Plaintiff asked no declarations of law. Defendant asked three, all of which were refused. The first was to the effect that if plaintiff's husband had been in possession of lot 49 for 15 years or more before his death and was a housekeeper or head of a family and resided and lived in a dwelling house on the lot, with his family, up to the time of his death, and that the lot did not exceed $ 1500 in value or five acres in extent, then the property was the homestead of plaintiff's husband and upon his death it passed to plaintiff as her homestead, and if plaintiff has since the death of her husband continued to reside on the premises then the property is the homestead of plaintiff. The second asked was to the effect that if this lot 49 is the homestead of plaintiff, derived from her husband in the manner above described, in determining what, if any, dower right she has in the farm land, the value of each should be ascertained, etc., stating the law as to this matter as in section 6710, Revised Statutes 1909. The third instruction or declaration asked was in substance that although the court might find that plaintiff and her husband conveyed lot 49 to their daughter in 1899, if the court found from the evidence that the conveyance was fraudulent as to the creditors of the husband and if after making the deed the husband and the family continued to keep the premises as a homestead up to the time of his death and that since then plaintiff "has continued to occupy and use said premises as her home, then said property was the homestead of said A. L. Kennedy, and upon his death passed to the plaintiff as her...
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