Leake v. King

• Decision Date: 30 April 1885
• Citation: 85 Mo. 413
• Parties: LEAKE et al. v. KING, Appellant.
• Court: Missouri Supreme Court

85 Mo. 413

LEAKE et al.

v.KING, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Clinton Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

J. M. Lowe for appellant.

(1) The defendant was the head of a family and entitled to the land as a homestead. Brown v. Brown, 68 Mo. 388. And she took the premises in fee on the death of her husband. 68 Mo. 388, and 57 Mo. 380. (2) There was no abandonment of the homestead. The latter must be voluntary. Moss v. Warner, 10 Cal. 296. Mere removal does not raise a presumption of abandonment. Ives v. Mills, 37 Ill. 75; Kitchen v. Borgevin, 21 Ill. 40; 20 Tex. 96.

Thomas E. Turney for respondents.

The debt for which the judgment was rendered was a debt of the defendant in this suit, contracted since the death of her husband. The land, therefore, if exempt as a homestead, must be so either because the defendant was or is now the head of a family. It will hardly be contended that she was the head of a family during the lifetime of her husband. She received the land from him exempt from his debts, because he was the head of a family, she constituting the family. The case of Beckman v. Meyer, 75 Mo. 333, has no application in this case. Beckman had been the head of a family, and as such entitled to the land in the suit as a homestead. By death and other causes the famliy no longer existed, and the court very properly said that the homestead right once acquired was not lost to Beckman, who was still residing on the land. But in this case the appellant is the head of a family now, or she never has been. The evidence shows that the appellant, who is sixty-five years of age, is living on the land, and that an unmarried brother of sixty is living with her. There is no evidence that either is dependent on the other. It is insisted that this evidence is not sufficient to establish the existence of a family. There is neither a legal nor moral obligation on either to support the other. Thompson on Homesteads, secs. 45 and 46. But for the fact that they have a common residence, the idea that they constitute a family would never have been entertained by any one. Whalen v. Cadmen, 11 Iowa 226.

PER CURIAM.

This is an action of ejectment to recover possession of the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter of section eigth, township fifty-five, range thirty. The answer was a general denial.

The plaintiffs, it seems, are step-sons of the defendant. In October, 1880, they commenced a suit before a justice of the peace against the defendant on an account and recovered judgment for one hundred and two dollars; filed a transcript of the judgment in the office of the clerk of the circuit court, sued out execution therefrom and levied on the land in controversy; bought it at that execution sale, and brought this suit for recovery of possession. To maintain the issues on their part, plaintiffs read in evidence the sheriff's deed.

Defendant then introduced Edwin Leake, one of the plaintiffs, who testified as follows: “Defendant is my step-mother; the land in controversy was the property of my father at the time of his decease. He and defendant, his wife, resided upon it and occupied it as their home up to and during the war. About the time of the close of the war, or just after, my father and family left on account of the perilous condition of the country, and went to Iowa, where he shortly afterward died. Defendant returned immediately and has lived on the land in controversy ever since. My father never bought land anywhere else. Defendant is about sixty-five years old.”

Mr. Sweat: “Defendant is my sister. She and her husband, now deceased, left the land in controversy about the close of the war on account of the unsettled condition of the country, as testified by plaintiff. Her husband died, seized of the land in controversy on the twenty-first day of April, 1866. Defendant, immediately after her husband's death, returned to their former home, and has lived on the land in controversy ever since. Her husband, before his death, nor has she since acquired any other homestead. No children were born to them, nor has she ever had any. Defendant and myself constituted all the family since the death of her husband. She is about sixty-five years of age. I am sixty and unmarried.”

The defendant then asked the following declaration of law: “The court declares the law to be that under the pleadings and evidence, the judgment must be for the defendant,” which the court refused.

There was some other evidence, which it is not important to notice, as it cuts no figure in the determination of the case. There was judgment for the plaintiff, from which the defendant appeals to this court.

I. The only important and controlling question in this case is, as to the exemption of the land under the homestead law. And it does not seem under the facts and circumstances of this case a solution of that question should be difficult. The evidence tends to prove, and, indeed, there is no controversy about the facts, that the defendant's husband was the owner of the land in 1866, and he and defendant, as husband and wife, were then residing on it, and as far as this case shows, he was not in debt. The plaintiffs, the sons of the husband, resided with their father. That, during that year (1866) as one of the plaintiffs swears, “my father and family left on account of the perilous condition of the country and went to Iowa,...