Mathewson v. Kilburn

Decision Date20 June 1904
Citation81 S.W. 1096,183 Mo. 110
PartiesMATHEWSON v. KILBURN et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action by G. S. Mathewson against L. M. Kilburn and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

P. C. Young, Scott J. Miller, and Frank S. Miller, for appellant. Sheetz & Sons, for respondents.

MARSHALL, J.

This is an action of ejectment to recover the southeast quarter of section 11, township 59, range 23, in Livingston county. The petition is in the usual form. The answer is a general denial, coupled with a special plea of estoppel. The circuit court entered judgment for the defendant, and the plaintiff appealed. The case was tried by the court without a jury, and no instructions were asked, given, or refused. The only questions, therefore, which are open to review in this court, are errors apparent on the face of the record, if any, whether there is any substantial evidence to support the judgment, and the rulings of the court made in the course of the trial which were objected to, and exceptions properly saved.

The chief contention of the plaintiff is that the land in controversy was his homestead, and therefore was not subject to sale under execution upon a judgment against him. The defendants, on the other hand, contend that the premises were never the homestead of the plaintiff, and, if they were, that he abandoned the same as a homestead prior to the sale. It is plain, therefore, that this is purely a question of fact, in the state of this record; and, as this court does not review the finding of fact by the trial court, the inquiry here is limited to an investigation as to whether there was any substantial evidence adduced to support the finding. The showing made by the plaintiff is this: In 1895 the plaintiff's father owned 60 acres of land in Montgomery county, Kan., on which there was a mortgage for $650. The plaintiff purchased it from his father, and, in payment therefor, assumed the mortgage for $650, and, in addition, gave the father a mortgage on the land for $800, which mortgage does not seem to have been recorded, however. The plaintiff then traded the Kansas land for the land in question. The other party (one Parkhurst) assumed the $650 mortgage on the Kansas land, the plaintiff gave Parkhurst a mortgage on this land for $800 for the difference, and the plaintiff's father destroyed the mortgage for $800 on the Kansas land. The land in question was unimproved, and had only a fence around it. The plaintiff and his father, mother, and sister then moved from Kansas to Missouri, and lived for a while in Chula, a short distance from the land. The plaintiff says that he brought with him from Kansas five horses and some farming implements, and his father brought with him two colts. In 1896, the plaintiff says, he built a house, barn, etc., upon the land, cleared some of it, constructed a levee, and moved onto the premises, with his father, mother, and sister, and that he supported the family and continued to reside on the premises as his homestead until the fall of 1898, when, his sister having died, his mother's health became poor, and, upon the advice of his physician, he took her back to Kansas to try to recuperate her health, intending to return to the premises as soon as her health was restored, but that his married sister, whom he and the family were living with in Kansas, became sick, and they stayed there until she got well, and then his father was taken sick with Bright's disease and died, and on February 22, 1900, he brought his remains back to Missouri, and buried them in his lot in May Cemetery, near Chula, where his sister was buried, and then he learned for the first time that the land had been sold under a judgment against him. The plaintiff further testified that before leaving the place, in 1898, he sold all the personal property, stock, farming implements, and household goods that were on the place, except a grindstone and a crowbar; that he went to Rosedale, Kan., and there rented a part of the house that his brother-in-law occupied, and went to work in Swift's Packing House; that, after giving Parkhurst a mortgage on this land for $800, he borrowed $1,200 on the land on November 13, 1896, from one Kitt, and out of the proceeds thereof he paid the $800 to Parkhurst; and in one place in the record he said he borrowed the other $400, represented by the Kitt mortgage, for the purpose of paying off the said judgment against him, and in another place in the record he said he borrowed that sum with which to build the house, but, as the judgment was only for $100, and as the house only cost $300, he could have paid for both out of said sum of $400, but did not pay the judgment, for the probable reason that the judgment was not rendered against him for over two years thereafter, and the debt upon which it was based was not incurred for over a year thereafter. The plaintiff paid the interest on the Kitt mortgage for the first year, and also paid the taxes for 1896. He claims that he was the head of the...

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5 cases
  • Borchers v. Borchers
    • United States
    • Missouri Supreme Court
    • February 7, 1944
    ...of fact, and the evidence on the question having been conflicting this court will defer to the finding of the trial court. Matthewson v. Kilburn, 183 Mo. 110; Snodgrass v. Copple, 131 Mo.App. 346; Kaes Gross, 92 Mo. 647; Smith v. Bunn, 75 Mo. 559; Klotz v. Rhodes, 240 Mo. 499; Rouse v. Cato......
  • Borchers v. Borchers
    • United States
    • Missouri Supreme Court
    • February 7, 1944
    ...of fact, and the evidence on the question having been conflicting this court will defer to the finding of the trial court. Matthewson v. Kilburn, 183 Mo. 110; Snodgrass v. Copple, 131 Mo. App. 346; Kaes v. Gross, 92 Mo. 647; Smith v. Bunn, 75 Mo. 559; Klotz v. Rhodes, 240 Mo. 499; Rouse v. ......
  • Mathewson v. Kilburn
    • United States
    • Missouri Supreme Court
    • June 20, 1904
  • Whiteley v. McLaughlin
    • United States
    • Missouri Supreme Court
    • June 20, 1904
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