Klotz v. Rhodes

• Decision Date: 29 February 1912
• Parties: KLOTZ v. RHODES et al.
• Court: Missouri Supreme Court

144 S.W. 791

240 Mo. 499

KLOTZ v. RHODES et al.

Supreme Court of Missouri. Division No. 1.

February 29, 1912.

1. HOMESTEAD (§ 80)—SALE—REINVESTMENT.

Where the proceeds of the sale of a homestead were not invested in other property for over six years, and there were no circumstances excusing this delay, this subsequently acquired property did not constitute a homestead exempt from execution under a judgment recovered before its purchase, since, to entitle it to the same right of exemption as the original homestead, the proceeds should have been invested within a reasonable time.

2. HOMESTEAD (§ 154)—ABANDONMENT.

The exemption right of a homestead may be lost by abandonment.

3. HOMESTEAD (§ 57)—SALE—REINVESTMENT —EVIDENCE.

In an action involving a homestead right, evidence held sufficient to show that alleged homestead was not purchased with the proceeds of the sale of a prior homestead, and hence was not exempt from execution under a judgment, recovered before its purchase.

Appeal from Circuit Court, Wayne County; J. J. Williams, Judge.

Action by Eli Klotz against James A. Rhodes and another. From a judgment for plaintiff, defendants appeal. Affirmed.

V. V. Ing, for appellants. James F. Green and Ernest Green, for respondent.

GRAVES, P. J.

Plaintiff was a judgment creditor of the defendant James A. Rhodes. The debt originated in 1893, and was reduced to judgment in 1897. This judgment of 1897 was revived in 1902, and under the latter judgment plaintiff caused execution to be issued which was levied upon the property involved in this suit. At the execution sale, of which defendants had notice, plaintiff purchased the property. His petition is in three counts. All of the property involved was purchased by defendants after the date of the revived judgment. Part of it was deeded to the wife, Nancy Rhodes, and part of it to the defendant James A. Rhodes. The first count of the petition relates to the lands deeded to Nancy Rhodes. It charges that these lands were purchased with the money of James A. Rhodes, and the title taken in the name of the wife to fraudulently hinder and delay plaintiff as the creditor of said James A. Rhodes, and asked the court to decree that the said Nancy held said lands to the use of her husband, and to further decree that plaintiff acquired the title thereto at such execution sale, and that the said Nancy had no title therein or thereto. The second count of the petition covers all the property in dispute, and states a cause of action under the old section 650, R. S. 1899. The third count is one in ejectment, alleging ouster on the 11th day of August, 1907, damages in the sum of $200, and monthly rents and profits at $10.

Defendant James A. Rhodes answered (1) by a general denial of all the facts pleaded, except "the rendition of the judgment, the issuance and levy of the execution as alleged in plaintiff's petition, and the sale under said judgment and execution of the land described in plaintiff's petition, and the execution of the sheriff's deed thereunder as alleged in said petition, and in the first count thereof, which he admitted (2) he says that the lands in dispute constitute his homestead, and were purchased with the proceeds of a previous homestead, which previous homestead antedated the judgment and debt to the plaintiff. He asks that plaintiff's deed be canceled as a cloud upon his title. The answer of Nancy Rhodes was a general denial. Reply to the answer of James A. Rhodes was a general denial.

Judgment went for the plaintiff upon each count of his petition, and the defendants appealed. The evidence we discuss in connection with the points made.

1. To our mind the judgment nisi must be affirmed, and this for several reasons. In the first place, the defendants claim to have sold what they called a homestead in January, 1899, for $825, and that the property in dispute was purchased with the proceeds of that prior homestead, after the wife had carried the money from 1899 to 1907, when the final payment was made. The principal property in dispute was purchased for $425 in December, 1904, or nearly six years after the sale of the alleged homestead. Defendants claim to have paid $100 down at the time (other evidence is only $50), and to have assumed a first mortgage for $100 and to have given a second mortgage for $225. The final payment was not made until 1907, but this date is immaterial for the point we have now in view.

The plaintiff claims that although it be conceded that defendant Jas. A. Rhodes did have and did sell a homestead in 1899, which homestead was exempt from the plaintiff's debt, yet that he only had a reasonable time in which to reinvest the proceeds of that homestead in another homestead, so as to make the latter execution proof, and that, inasmuch as the property in question was not acquired within a reasonable time, such reinvestment does not meet the requirements of the law. In this contention we think the plaintiff is right. The law never contemplated that the proceeds of the first homestead could be carried...