Kessner v. Phillips

• Decision Date: 24 May 1905
• Citation: 88 S.W. 66,189 Mo. 515
• Parties: KESSNER et al. v. PHILLIPS et al.
• Court: Missouri Supreme Court

88 S.W. 66

189 Mo. 515

KESSNER et al. v. PHILLIPS et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

1. SPENDTHRIFT TRUSTS.

Spendthrift trusts are recognized in Missouri.

2. SAME—CREATION.

A deed conveyed the title to the grantee on condition that the land should not be liable for any debts of the grantee then existing, or that he might contract during a specified number of years, and that the grantee should have no right to incumber or dispose of the land for a certain period except to dispose of it by will. Held, that a spendthrift trust was not created, there having been no trust estate, the grantee not having been limited to the enjoyment of the income, his right not being limited to support, he having taken an absolute fee and having had the right of possession.

3. DEED—NATURE OF ESTATE.

Where a deed granted, bargained, sold, and transferred the land to the grantee, but provided that the conveyance was made on condition that the land should not be liable to any debts of the grantee then existing or contracted during a specified period, and that he should have no right to sell or incumber the land for a certain period except to dispose of it by will, the grantee took a fee, and the other provisions were void as repugnant thereto.

4. EJECTMENT—EVIDENCE.

Where, in ejectment, plaintiffs claimed under an execution sale, and under the issues tendered by defendants, and conceded by plaintiffs the judgment under which the execution issued was alleged to be final judgment, it was incompetent for defendants to contradict them.

5. HOMESTEAD—SELECTION.

Rev. St. 1899, § 3617, provides that when an execution is levied on a homestead the homesteader shall have the right to choose the part to which his exemption shall apply. Held that, unless the sheriff gives the homesteader an opportunity to make his selection, the sale is void.

6. EXECUTION—SALE—SHERIFF'S DEED.

Rev. St. 1899, § 3617, provides that when an execution is levied on a homestead the homesteader shall have the right to designate and choose the part of the land to which the exemption shall apply, and that proceedings with respect to the homestead shall be stated in the return to the execution. Held, that it is not necessary that the sheriff's deed contain the recitals which the statute requires the execution return to set out.

7. ACTION AT LAW.

In ejectment the defense was that the land involved, which was claimed by plaintiff under an execution sale, was the corpus of a spendthrift trust, in which the judgment debtor had been the beneficiary, but no affirmative relief was asked. Held, that the action was one at law, and not in equity.

8. APPEAL—OBJECTIONS WAIVED.

Where a defendant failed to take any exception to the transfer of the cause to the equity docket, but acquiesced therein, and tried the cause as if one in equity, he could not complain of the transfer on appeal.

Appeal from Circuit Court, Jackson County; John W. Henry, Judge.

Action by Helen Kessner and others against Shelby Phillips and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

A. N. Adams, John N. Southern, and Scarritt, Griffith & Jones, for appellants. Paxton & Rose, for respondents.

MARSHALL, J.

This is an action in ejectment, instituted on the 20th of September, 1899, to recover 70 acres of land in township 50, range 30, Jackson county, Mo. The petition is in the usual form, and the ouster is laid as of September 20, 1899. The action is against Phillips, the tenant in possession, and Joseph Lamertine Hudspeth, the owner. The defendants answered jointly. The answer is a general denial, coupled with a special defense particularly set forth, the substance of which is that the conveyance to the defendant Hudspeth of the land in controversy created a spendthrift trust, whereby said Hudspeth was prohibited from alienating the land, and whereby it was attempted to place the same beyond the reach of his creditors. The answer further sets up that in 1898 the plaintiff Kessner obtained a judgment for $5,000 against the defendant Hudspeth, under which the property in controversy was sold on execution and the plaintiffs became the purchasers thereof; and it is alleged that they thereby acquired no right, title, or interest in the same. The reply admits the conveyance to Hudspeth, but denies that it created such a trust; admits the judgment aforesaid, and the sale thereunder; and asserts that the plaintiffs obtained a good title to the property. Upon motion of the plaintiffs the case was transferred to the equity docket of the court "for the reason that defendants have filed an answer setting up an equitable defense, and the case is now triable by this court." It does not appear from the abstract of the record that the defendants objected thereto, or saved any exceptions to the ruling of the court. The trial court entered judgment for the plaintiffs for possession, 1 cent damages, and $20 monthly rents and profits. After proper steps, the defendants appealed.

The case made is this: Robert N. Hudspeth, the uncle of the defendant Joseph Lamertine Hudspeth, was the owner of the property. On the 13th of March, 1871, he executed his will, by which he devised all of his property, including that in controversy, to his brothers and sisters; that is, one undivided half to his brother Joel E. Hudspeth, and the other undivided half to his brothers George W. Hudspeth, Silas B. Hudspeth, and his sister, Malinda P. Bell, share and share alike. Thereafter, in March, 1885, Robert N. Hudspeth died; and afterwards, on June 15, 1885, his said brothers and his said sister made, executed, and delivered to the defendant Joseph Lamertine Hudspeth a deed to the property in question, being a part of the property devised to them, and which deed recited that, "in consideration of love and affection, and in pursuance to the verbal request of their brother Robert N. Hudspeth, now deceased, whose heirs and devisees they are, under and by virtue of his last will and testament, * * * and upon the condition precedent as herein set out, and in consideration of the sum of one dollar ($1.00) to them paid by Joseph Lamertine Hudspeth, * * * they have granted, bargained, sold and transferred, and do by these presents, grant, bargain, sell and transfer, unto the said Joseph Lamertine Hudspeth, upon the terms and conditions hereinafter set forth," certain property, amounting to 120 acres, and covering the 70 acres here in dispute. The deed contained the following further provisions: "This conveyance being made upon the express condition that the above described real estate shall not be liable to any debts that the said Joseph Lamertine Hudspeth may now have, or that he may contract during the period of thirty years from the date hereof. And the said Joseph Lamertine Hudspeth shall have no right, power or authority to, in any manner, sell, incumber or dispose of said real estate or any part thereof for the period of thirty years from the date hereof, except to dispose of the same by his last will and testament. After the expiration of said thirty years, as aforesaid, said real estate shall vest absolutely in the said Joseph Lamertine Hudspeth, free and clear of all the conditions herein named, to use and enjoy and dispose of in any manner he may deem proper. The said Joseph Lamertine Hudspeth to have the use and enjoyment and the income therefrom from this date upon the terms and conditions above named. But should he sell, or attempt to sell, incumber, said premises at any time during the said thirty years, then in that event the title to the above described premises shall immediately vest in the said first parties, their heirs or assigns." The plaintiffs offered in evidence the sheriff's deed under the judgment aforesaid. The defendants objected to the introduction of the deed upon two grounds: First, because the deed does not show on its face that the law in reference to the setting apart of a homestead had been complied with; and, second, that the judgment under which execution was issued was not a final judgment, and therefore the clerk had no right to issue the execution. The court overruled the objection, and the defendants saved exception. The sheriff's deed showed that commissioners were appointed to set out the homestead of the defendant Hudspeth, and that they did set apart to him 50 acres of the tract as a homestead, and that the remaining 70 acres were sold to the plaintiffs. The plaintiffs also offered in evidence the amended petition in the case wherein the judgment aforesaid was rendered, which showed that the plaintiff Kessner was the wife of Joseph W. Kessner, and that the defendant Hudspeth had willfully shot and killed him, for which she sued for $5,000 damages. The plaintiffs also showed the rental value of the land, and then rested. On their behalf the defendants offered in evidence a certified copy of the judgment aforesaid, which also contained a recital of the fact that the defendants had field motions for new trial and in arrest of judgment. The record did not show affirmatively that said motions had been overruled or acted upon. The plaintiffs objected to the introduction of the said certified copy of the judgment on the ground that the defendants' answer admitted that the judgment was a final judgment, and, further, because the certified copy did not purport to be a copy of the whole record or proceedings in the case. The court sustained the objection, and excluded the record on the ground that the defendants' answer pleaded the judgment as a final judgment and the plaintiffs' reply admitted the same. The defendants excepted to the ruling of the court. The defendants then offered in evidence the will of Robert N. Hudspeth, which, so far as is material here, devised the property in controversy to the brothers and sister of the testator absolutely, as stated. The defendants then called Edward P. Gates, one of the attesting witnesses to the will,...