McCluer v. Virden

• Decision Date: 16 May 1934
• Docket Number: No. 9855.,9855.
• Citation: 70 F.2d 724
• Parties: McCLUER v. VIRDEN.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 724 (1934)

McCLUER v. VIRDEN.

No. 9855.

Circuit Court of Appeals, Eighth Circuit.

April 18, 1934.

Rehearing Denied May 16, 1934.

George E. Woodruff, of Trenton, Mo. (J. Hubert Fuller, of Princeton, Mo., on the brief), for appellant.

L. A. Warden, of Trenton, Mo., for appellee.

Before STONE and WOODROUGH, Circuit Judges, and OTIS, District Judge.

STONE, Circuit Judge.

This is an appeal from an order allowing a designation of homestead by the appellee, bankrupt. From this allowance the trustee appeals.

The question here involved is well stated by the appellant as follows: "May bankrupt, living upon land owned by her husband as head of the family and occupied by him as the family homestead, acquire other property having no connection with said homestead and, after such property is acquired, incur debts and later, after the property formerly occupied as a homestead has been lost through foreclosure sale, remove to the property last acquired by the bankrupt and claim said property exempt under the homestead laws of the State of Missouri?" The facts are that the family lived upon a certain piece of property which was incumbered. At the same time appellee owned in her own right the land now in controversy. There was foreclosure upon the land of the husband which was then being occupied, and thereafter the family moved onto appellee's property, using it as their home thereafter. After appellee had acquired this land, but before moving to it, she had contracted debts which are yet unpaid.

The answer to the above question must be found in the law of Missouri as applied to the above facts. Section 2998, Rev. St. Missouri 1929 (Mo. St. Ann. § 2998, p. 5055), expressly empowers a married woman to "invoke all exemption and homestead laws now in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property." Section 608 (Mo. St. Ann. § 608, p. 4221) provides that the homestead shall be "exempt from attachment and execution, except as herein provided." Section 615 (Mo. St. Ann. § 615, p. 4234) defines the exception referred to in section 608, as follows: "Such homestead shall be subject to attachment and levy of execution upon all causes of action existing at the time of the acquiring such homestead, except as herein otherwise provided; and for this purpose such time shall be the date of the filing in the...