Macke v. Byrd

• Decision Date: 23 December 1895
• Citation: 131 Mo. 682,33 S.W. 448
• Parties: MACKE v. BYRD et al.
• Court: Missouri Supreme Court

33 S.W. 448

131 Mo. 682

MACKE v. BYRD et al.

Supreme Court of Missouri.

December 23, 1895.

ALLOTMENT OF HOMESTEAD — INCREASE IN VALUE — SALE OF HOMESTEAD — RIGHTS OF PURCHASER.

Rev. St. 1889, § 5436, provides that, when an execution is levied on land of a housekeeper of which his homestead is a part, he may designate the part thereof which he claims as a homestead, and that the boundaries thereof shall be fixed by appraisers, and the balance levied on under the execution. Section 5435 provides that a homestead shall be exempt from an execution for a debt accruing after it is set apart. Section 5442 provides that, when a housekeeper acquires a new homestead from the proceeds of a former one, the new homestead shall be exempt from all the debts from which the former was exempt. Held, that where, after a homestead has been set apart to a housekeeper, a judgment is recovered against him, and he sells the homestead for a sum in excess of the amount fixed by statute as the value of a homestead, the judgment creditor cannot subject the excess of the land in the hands of the vendee to the payment of the judgment.

In banc. Error to circuit court, Cape Girardeau county; H. C. O'Bryan, Judge.

Action by Macke against Byrd and another to subject land to the payment of a judgment. Judgment for plaintiff, and defendants bring error. Reversed.

R. B. Oliver and J. W. Limbaugh, for plaintiffs in error. Wilson Cramer and W. H. Miller, for defendant in error.

BARCLAY, J.

This is a suit to charge certain real property in Cape Girardeau county with the lien of a judgment, and to have part of the land, in excess of the homestead value, set apart and subjected to sale to satisfy the lien, although the land is owned by other parties than the judgment debtor. On the other side, it is claimed that the property is free from the judgment lien, by virtue of the homestead law. The facts that control the result were admitted by the pleadings or at the trial. Mr. Ranney was in possession in May, 1876, when the tract in question, consisting of nearly 105 acres, was set apart to him as a homestead, by appraisers, appointed by the sheriff, under two executions in favor of Mr. Houck, as administrator, plaintiff, against Ranney and another. The sheriff's report of sale in that matter, including a report of the appraisers, who set apart the homestead, was confirmed by the court from which the executions issued. Ranney had occupied the place as a homestead for himself and family for many years prior to any of the dates in this record, and continued in such occupancy until the conveyance to Mrs. Byrd. After the homestead had been so set apart, the present plaintiff, Mr. Macke, obtained in 1883 a judgment against Ranney and another for $739.80, on a note executed by them in March, 1876. In July, 1885, Ranney and Mr. A. R. Byrd made a contract by which the former agreed to sell the piece of land, which we shall call the homestead, for the price of $2,600. Before the sale was consummated, Macke sued out an execution on his judgment, and garnished Mr. Byrd. Thereupon Ranney refused to make a deed. Upon a trial of the garnishment case, there was a finding for defendants, and Mr. Byrd was discharged as garnishee. But after the garnishment was served, Mrs. Byrd, wife of this Mr. Byrd, purchased the property for the same price agreed upon in the former contract of sale. The homestead was conveyed to her, through an intermediary, August 6, 1885. The consideration was drawn from the proceeds of sale of some other land belonging to the wife. After this purchase, Mr. and Mrs. Byrd entered into possession, and Ranney moved out of the state. In 1886, plaintiff sued out a writ of scire facias to revive his judgment, making Mr. and Mrs. Byrd parties, as well as the original defendants. The court ultimately discharged the former as unnecessary parties, but entered judgment of revivor against Ranney upon a service by publication as to him. Then followed the present suit, in 1888, by the judgment creditor, Macke, against Mr. and Mrs. Byrd, to cause the homestead to be reassigned, and that part of it in excess of $1,500 in value to be subjected to the plaintiff's demand as embodied in the judgment. The trial court found for plaintiff, and appointed commissioners to set off the homestead, which they afterwards did, by a particular description; and the court adjudged the rest, a considerable part, of the original homestead tract to be subject to plaintiff's judgment, notwithstanding the original debtor, Ranney, had meantime parted with his title as above described. The defendants took the pending writ of error after the customary motions and exceptions to preserve for review the questions submitted here. The Ranney homestead was set apart to him in 1876, as exempt from the executions then outstanding against him. The main question raised by the case at bar is whether or not the lien of the judgment subsequently obtained against Ranney by Macke reached the excess in value, above the statutory limit, which the alloted homestead appears to have afterwards acquired.

The lien of a judgment upon realty in Missouri is founded on statute. By the terms of its creation, the lien impresses "lands, tenements, and hereditaments, liable to be sold upon execution," Rev. St. 1889, § 6048, being same as Rev. St. 1879, § 2767. The effect of the section cited is to limit the force of the words "real estate," in section 6011, Rev. St. 1889, to a narrower meaning than they would otherwise bear through the aid of section 6570. But the last-named section is only applicable where the construction it furnishes is not plainly repugnant to the intent of the legislature or of the context of the statute to be construed. But, in regard to judgment liens, section 6048 supplies a context which qualifies the broad meaning that section 6011 might be construed to have without such context. The homestead act declares that real property coming within its protection is "exempt from attachment and execution," subject to certain exceptions as to prior debts not relevant to the pending controversy. Rev. St. 1889, § 5435. It is evident from the language of that section that, as between a judgment creditor and his debtor in possession of a homestead within the statutory size and value, the judgment, on a debt created since the record of the homestead deed, creates no lien on the homestead property. Harrington v. Utterback (1874) 57 Mo. 519; Holland v. Kreider (1885) 86 Mo. 59; Biffle...