McMichaels v. Reece

Decision Date27 November 1916
Docket NumberNo. 12126.,12126.
PartiesMcMICHAELS v. REECE.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Nodaway County; Arch B. Davis, Special Judge.

Action by Robert McMichaels against Emma J. Reece. From an order denying plaintiff's motion to quash the sheriff's return to an execution which set off real estate to defendant as her homestead, plaintiff appeals. Affirmed.

Wright & Ford and Ira K. Alderman, all of Maryville, for appellant. Ellis G. Cook and O. S. Fuqua, both of Maryville, for respondent.

ELLISON, P. J.

This litigation arises on a motion to quash a sheriff's return of an execution, which disclosed that the sheriff instead of levying the writ, set off real estate to the debtor as her homestead. Plaintiff in the execution, claiming that the property was not exempt, filed his motion to quash the return, and the court overruled it. He then appealed to this court for relief.

A. A. Reece and this defendant, Emma J. Reece, were husband and wife, with several minor children. He owned and resided on the real estate in controversy, which is not more than the statutory homestead exemption. He and his wife joined in the execution of a note and a deed of trust on this property to secure it. They afterwards jointly executed another note, not secured, on which the holder obtained judgment. Then A. A. Reece died, leaving this defendant as his widow and the minor children. Afterwards the deed of trust was foreclosed by the holder, and defendant, Emma, bought the land at the sale. She then recorded her trustee's deed. After she recorded it the judgment creditor had the execution in controversy issued and placed in the hands of the sheriff, and he, as we have said, set off the property to her as the homestead of herself and minor children.

Under the provisions of our homestead statute (section 6711, R. S. 1909) a homestead cannot be claimed in real estate against a debt antedating the record of the deed to the land. Plaintiff in the judgment concluded that as his claim was older than defendant's trustee's deed, she was not entitled to a homestead as against his debt. He undertakes to justify this conclusion upon the idea that while defendant, as Reece's widow, could have claimed a homestead, against plaintiff, for herself and minor children, she abandoned that right by becoming the purchaser of the land at the trustee's sale; that she thereby became the owner as any stranger would, and recorded her deed; hence, as such deed was subsequent to plaintiff's debt, she could not claim a homestead. In endeavoring to forestall the thought that defendant, as cotenant with the minor children, could not set herself up adversely against them, plaintiff claims that, in the absence of fraud, one cotenant has a right to buy the entire title and thus oust his cotenants. He cites Becker v. Becker, 254 Mo. 668, 163 S. W. 865, in support of this. In that case it was decided that, where there is a note secured by deed of trust on land owned by tenants in common, and without suggestion from any cotenant the holder of the note forecloses the deed of trust, one of the cotenants may purchase, at a fair sale, the whole title just as a stranger would. In that case the court recognizes the rule that there is a confidential relation existing between tenants in common, and that if one buys an outstanding title or discharges an incumbrance, it is for the benefit of all if they will contribute to him. But the court likens the case to that of sales by court process such as in partition where the whole public is invited to bid; each cotenant having an equal right with any other person. In support of that case Judge Walker cites Starkweather v. Jenner, 216 U. S. 524, 30 Sup....

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11 cases
  • In re Clute's Estate
    • United States
    • Court of Appeals of Kansas
    • April 6, 1942
    ...such a sale. Daniels v. Peck, 288 S.W. 84; Dalton v. Simpson, 270 Mo. 287, 193 S.W. 546; Rombauer Estate, 256 S.W. 1066; McMichael v. Reese, 194 Mo.App. 363, 190 S.W. 51; Regan v. Ensley, 222 S.W. 773; Maupin v. Longacre, 288 S.W. 54, 58; Bank of Hartsburg v. Sapp, 73 S.W.2d 294; Nettleton ......
  • In re Est. of Clute v. Clute
    • United States
    • Court of Appeal of Missouri (US)
    • April 6, 1942
    ...Mo. 1939; Daniels v. Peck, 288 S.W. 84; Dalton v. Simpson, 270 Mo. 287, 193 S.W. 546; Rombauer Estate, 256 S.W. 1066; McMichael v. Reese, 194 Mo. App. 363, 190 S.W. 51; (c) Regan v. Ensley, 222 S.W. 773; Sec. 612, R.S. Mo. 1939; Maupin v. Longacre, 288 S.W. 54, 58; Bank of Hartsburg v. Sapp......
  • Ramsey v. City of Poplar Bluff
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 1926
    ...ceased on her remarriage, and plaintiff thereupon became entitled to the sole right of occupancy until his majority. Mc-Michaels v. Reece, 194 Mo. App. 363, 190 S. W. 51. His mother could not deprive him of this right by any act or deed. Ruling on this point in Phillips v. Presson, 172 Mo. ......
  • Willoughby v. Brandes
    • United States
    • United States State Supreme Court of Missouri
    • June 25, 1927
    ...tenant was the mother of the remaindermen, who were minor children, and cannot acquire a title adverse to those remaindermen. McMichaels v. Reese, 190 S.W. 51. Brandes, with both actual and constructive notice of the title of the widow and the rights of the remaindermen, her children, could......
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