Mathewson v. Kilburn
| Decision Date | 20 June 1904 |
| Parties | MATHEWSON, Appellant, v. KILBURN et al |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. J. W. Alexander Judge.
Affirmed.
P. C Young, Scott J. Miller and Frank S. Miller for appellant.
(1) Plaintiff was the head of a family under the evidence. Ridenour-Baker Gro. Co., 142 Mo. 165; Broyles v Cox, 153 Mo. 242. (2) The land in controversy was his homestead and therefore exempt from sale by levy of execution for debts made after the homestead was acquired. R. S. 1899, sec. 3616. (3) The homestead had not been abandoned by plaintiff. Mills v. Mills, 141 Mo. 198. The question of abandonment of the homestead is a question of fact. The intent of the homesteader cuts a large figure in solving the question. Mills v. Mills, 141 Mo. 198; Kaes v. Gross, 92 Mo. 647; Leake v. King, 85 Mo. 413; Smith v. Bunn, 75 Mo. 559; Bealey v. Blake, 153 Mo. 657; Bank v. Brown, 165 Mo. 32; Waples on Homestead, p. 562, sec. 2. (4) Not necessary to claim exemption. Tapley v. Ogle, 162 Mo. 197. (5) The evidence does not show a valid sale of the land. The executions are void. R. S. 1899, sec. 4019.
Sheetz & Sons for respondents.
(1) No exceptions were saved to the admission of the justice's transcript, the execution and other proceedings. (2) The appellant was not a resident of the county, and no execution or return of nulla bona was necessary from the justice. Huhn v. Lang, 122 Mo. 606. (3) No instructions were asked or given, and the lower court found all the facts in favor of defendants and this court will not interfere therewith. Peniston v. Schlude, 171 Mo. 132; Comer v. Statham, 173 Mo. 248. (4) Appellant was not the head of a family; his father and his father's family were in nowise dependent upon him for support. Wade v. Jones, 20 Mo. 76; State v. Kane, 42 Mo.App. 253. The members of the family must be dependent on him for support. 15 Am. and Eng. Ency. of Law (2 Ed.), 237, 538. Housekeeper is synonymous with head of family. Same, vol. 12, p. 89. The court found appellant was not the head of a family or housekeeper and had no homestead, and that he had abandoned the premises in suit; and that finding is correct under the law and evidence in this case. (5) Housekeeper must keep house in the State; when he ceases to do so he ceases to be a housekeeper. 15 Am. and Eng. Ency. of Law (2 Ed.), 536. (6) Plaintiff had no homestead in the premises in suit; he had left the State, rented property in Kansas, and was not in the occupancy of the premises in suit as the head of a family at the time of the levy of the writ. Brewing Ass'n v. Howard, 150 Mo. 451. (7) The title of respondents to the land in suit accrued after sale by the sheriff and while appellant was acting in such a manner as to induce the belief that he had abandoned all claim to it. He will not be permitted to make any claim now. Reece v. Renfrow, 68 Tex. 192.
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 defendant, 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 sixty acres of land in Montgomery county, Kansas, 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, 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, with whom he and the family were living while 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, Kansas, 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 four hundred dollars, 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 family and that he supported them, and that while his father also worked on the place, he was old and not able to work much. His father owned one hundred and sixty other acres of land in Kansas, which were rented, but plaintiff said he used the rent derived therefrom and did not employ it towards the support of the family. When the mortgage to Kitt fell due, the plaintiff was not able to pay it, but he and defendant went to all the money lenders in town trying to borrow money, but no one would lend him any more than the amount of the Kitt mortgage. The defendant said that the plaintiff told him that if he could not raise some more money on the farm, he would be obliged to abandon it and let it go, as he could not pay what was then due on it. The plaintiff denies that he made any such statement.
On the twenty-eighth of October, 1898, Mrs. Richards began suit against the plaintiff and one Long, on said note for $ 100 before a justice of the peace. The summons was personally served upon the defendants, and on the return day they appeared in open court and confessed judgment for one hundred dollars, with eight per cent interest from October 1, 1898. In the fall of 1898 the plaintiff sold the personal property on the place, leased the premises and went to Kansas, as above stated. He returned to Missouri in 1899, for a few days, but says he made no inquiry about the land or about the judgment. When he brought his father's remains to be buried on February 22, 1900, he learned that the land had been sold under the Richards judgment, and...
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