Lortz v. Rose

• Citation: 145 S.W.2d 385,346 Mo. 1212
• Decision Date: 11 December 1940
• Docket Number: 36860
• Parties: Wesley M. Lortz and Marguerite Lortz, Appellants, v. Claude Estelle Rose, Wenona Mae Rose and the First National Bank in Lamar
• Court: United States State Supreme Court of Missouri

145 S.W.2d 385

346 Mo. 1212

Wesley M. Lortz and Marguerite Lortz, Appellants, v. Claude Estelle Rose, Wenona Mae Rose and the First National Bank in Lamar

No. 36860

Supreme Court of Missouri

December 11, 1940

Appeal from Barton Circuit Court; Hon. Thos. W. Martin Judge.

Affirmed.

R A. Pearson for appellants.

(1) The wife has the right of homestead exemption in her own land when the husband asserts none for the protection of his property, and no claim is necessary. Sec. 2998, R. S. 1929; Sharp v. Stewart, 185 Mo. 518; State v Oberheide, 39 S.W.2d 397; Ahman v. Kemper, 119 S.W.2d 256; 29 C. J., 969; Tapley v. Ogle, 162 Mo. 197. (2) Nor is a temporary removal caused by necessity, with intention of returning when circumstances permit, an abandonment of the homestead. There is a presumption the right continues. 29 C. J., 938; Snodgrass v. Copple, 131 Mo.App. 352; Seilert v. McAnnaly, 223 Mo. 516. (3) Nor is its conveyance by the wife fraudulent as to creditors, and its sale under execution by a judgment creditor is void. Farmer v. Handley, 9 S.W.2d 894; Pocoke v. Peterson, 165 S.W. 1022; New Madrid Banking Co. v. Brown, 165 Mo. 32. (4) Nor is a judgment or execution levy a lien against it. Sec. 1179, R. S. 1929; White v. Spencer, 217 Mo. 242. (5) And an execution sale without setting aside debtor's homestead is void. Ehlers v. Potter, 219 S.W. 915; Macke v. Bird, 131 Mo. 682. (6) The husband and wife having acquired the homestead through mesne conveyance from the wife, no sale of the wife's interest alone could convey anything. The effect of the husband's filing in bankruptcy would be the same, and abate the execution against both. The bankrupt's property, wherever located, is subject to the exclusive jurisdiction of the bankrupt court, and as to an entirety estate acquired within four months has the effect of severing his liability under the execution and leaving the judgment as though rendered against the other spouse alone, nor could a subsequent dismissal of the bankruptcy validate a sale pending the proceeding. Stifel v. Saxy, 273 Mo. 159, 201 S.W. 67; Chicago Ry. Co. v. Hall, 229 U.S. 514; Ades v. Caplin, 103 A. 94, L. R. A. 1918D, 276; In re Darwin, 117 F. 407; Fed. Bankruptcy Act, secs. 75 (a), (n), (o). (7) Defendants' plea for affirmative relief is of matter arising after plaintiffs' action commenced, and does not state a defense thereto, is inconsistent, irrelevant and a departure. The motion to strike is in the nature, and perform the office of a demurrer. 49 C. J., 563; Cook v. Newby, 213 Mo. 483; Floyd v. Sellars, 44 P. 373; Boyd v. Jones, 49 Mo. 202; Littlefield v. Ramsey, 181 Mo. 621; 49 C. J. 686, sec. 975.

Combs & Combs and E. L. Moore for respondents.

(1) Where plaintiff fails to reply, or simply denies the "new matter" in the answer, "under the codes and practice acts defendants may move for and is entitled to judgment on the pleadings." State ex rel. v. Skinker, 324 Mo. 964; Hilburn v. Ins. Co., 129 Mo.App. 678; Young v. Scofield, 132 Mo. 661; Betz v. Tel. Co., 121 Mo.App. 473; Sundmacher v. Lloyd, 135 Mo.App. 517. (2) "Equity will not act unless the right to the relief is clearly established." Steele v. Allison, 228 Mo.App. 656. (3) "Where a pleading is ambiguous it should be taken most strongly against the pleader." Price v. Mining Co., 83 Mo.App. 470; Cherry v. Chorn, 221 Mo.App. 1210. (4) The husband is the head of the family as to exemptions. Section 2998 "does not take away the husband's rights as the head of the family to claim the benefit of said exemption and homestead laws and the wife's right to avail herself of said laws is not an absolute right for if the husband has claimed them the wife is precluded from doing so. It is only in cases where the husband has failed to exercise his right that the wife may exercise her own." White v. Smith, 104 Mo.App. 202; Gladney v. Berkley, 75 Mo.App. 98; Morrow v. Zane, 185 Mo.App. 118; Sharp v. Stewart, 185 Mo. 528. (a) Lortz evidently claimed homestead because of the entirety. But that was created long after he made the debt and was not exempt as to that debt, which was joint and several. Morrow v. Zane, 185 Mo.App. 118; Dickey v. Thompson, 323 Mo. 107; Wharton v. Bank, 223 Mo.App. 240. (5) The record title and actual occupancy are very important in determining whether a sheriff is wrong in not giving notice of exemptions. Vogler v. Montgomery, 54 Mo. 577; St. Louis Brewing Assn. v. Howard, 150 Mo. 450; Rouse v. Caton, 168 Mo. 296; Feurt v. Caster, 174 Mo. 296; Adams v. Adams, 183 Mo. 402. (6) A sheriff's deed is not void because the property sold might have been exempted if the exemption had been claimed. Chance v. Norris, 143 Mo. 235. (7) Defendant may plead as many defenses as he may have, legal or equitable, or both, if consistent. Sec. 777, R. S. 1929; Smith v. Culligan, 74 Mo. 387; Ledbetter v. Ledbetter, 88 Mo. 60; Bank v. Stewart, 136 Mo.App. 24; Finley v. Williams, 325 Mo. 695; Vaughn v. Conran, 20 S.W.2d 968. (a) A man may buy up as many titles as he likes. Cummings v. Powell, 97 Mo. 536; Landes v. Perkins, 12 Mo. 259; Wilcoxen v. Osborn, 77 Mo. 629; Waddell v. Chapman, 238 S.W. 483; Mattison v. Ausmuss, 50 Mo. 553; Mather v. Walsh, 107 Mo. 131. (8) Under Sections 791 and 825 of the Code, parties may plead new matter occurring since the suit was filed. Ward v. Davidson, 89 Mo. 455; Cohn v. Souders, 175 Mo. 466.

OPINION

Douglas, J.

This is an action involving title to real estate. Plaintiffs sued to set aside a sheriff's deed to land in Barton County sold under execution to defendants, Rose. Plaintiffs included in their prayer a request for relief in that the court "adjudge and define the respective rights, titles and interests of the parties herein to said property."

Defendants admit they bought the land at the execution sale and deny plaintiffs' right to relief. At the time of the execution sale there was a deed of trust against the land which constituted a paramount lien. The sale under execution was subject to this lien. Later, after this action was begun, the deed of trust was foreclosed and these same defendants were the purchasers at the foreclosure sale. They set up their claim as the absolute owners of the land through their purchase at the foreclosure sale and contend the question as to the validity of the execution sale is no longer in the case. By cross bill they ask affirmative relief to the effect the court should decree that title is in them and that plaintiffs have no right, title or interest in the land.

Plaintiffs, in reply, admit the foreclosure sale and the purchase of the land by defendants. They attempt to avoid the sale by a claim of tender of payment of the debt secured by the deed of trust. They plead: ". . . plaintiffs agreed with one, Workman, that he would take up the said indebtedness and note and pay same to the holder thereof the said mortgagee, and that he should have and hold the lien of the mortgage and be subrogated to same and the rights of mortgagee, and that prior to said mortgage sale said Workman tendered payment to said mortgage of said indebtedness in the presence of and with the consent of the mortgagors, but that said mortgagee refused said payment from said Workman, refused to turn the note to him or mortgagor but insisted on proceeding with the foreclosure, and did foreclose same, the said Workman was then and there and at all times up to said sale ready and willing to pay the amount of said debt and accrued costs."

To this reply defendants filed a motion for judgment on the pleadings which was sustained and judgment was entered decreeing that title to the land was vested in defendants and that plaintiffs have no right, title or interest in the land. Plaintiffs have appealed.

We are confronted, at the outset, with the question whether plaintiffs have pleaded a good and sufficient tender so as to present that issue properly. If so, the judgment rendered on the pleadings only was improper. Under somewhat similar facts the St. Louis Court of Appeals held that such a tender was not good in the case of Rowe v. Bank of Centralia, 221 Mo.App. 262, 2 S.W.2d 191. That was an action to enjoin a foreclosure of a deed of trust and to require the holder of the note secured by it to accept payment as tendered. The facts there showed that a friend of the plaintiff's agreed to advance an amount of money sufficient to pay the note in full. This money was tendered the holder of the note on condition that it endorse the note without recourse and deliver it to the plaintiff. The holder refused to do this but stated that it would accept the money so tendered in payment of the note if it be permitted to cancel the note and satisfy the record as to the deed of trust. The court found that this amounted to no more than a conditional tender, that the condition was one not legally enforcible, and therefore the tender constituted no defense. The decision is sound and is applicable here. We hold that the tender as pleaded in the reply was also conditional.

The law is well settled in this State that a conditional tender constitutes no valid defense to a foreclosure where the conditions are other than those which the mortgagee is under a legal duty to fulfill. [Bridges v. Smith (Mo.), 213 S.W. 858; 41 C. J., Mortgages, sec. 926.] As a result the reply offers no defense to defend to defendants' cross-bill. In view of the admissions, in plaintiffs' reply, of the foreclosure sale and the purchase of the land by defendants, the defendants' cross-bill stands undenied. There is no charge of any fraudulent scheming or collusion between the holder of the note and defend...