Morrow v. Zane

• Decision Date: 14 November 1914
• Docket Number: No. 1375.,1375.
• Citation: 185 Mo. App. 111,170 S.W. 918
• Parties: MORROW et al. v. ZANE.
• Court: Missouri Court of Appeals

170 S.W. 918

185 Mo. A. 111

MORROW et al. v. ZANE.

No. 1375.

Springfield Court of Appeals. Missouri.

November 14, 1914.

1. BANKRUPTCY (§ 395) — CLAIM OF EXEMPTIONS — EFFECT.

Where before bankruptcy a husband conveyed his interest in his homestead to his wife, his act in asserting a homestead exemption in the property conveyed does not preclude the wife from thereafter asserting a homestead exemption in the same property under Rev. St. 1909, § 8304, providing that a married woman may invoke all exemptions and homestead laws except where the husband has claimed such exemption and homestead rights for the protection of his own property; for the husband's claim was wholly unavailing, as he could assert an exemption in his wife's property, though the rule would be otherwise if the husband's claim were effective.

2. HOMESTEAD (§ 94) — PROPERTY EXEMPT.

After property was acquired by a husband and wife as an estate in entirety, the wife incurred indebtedness. Thereafter the husband conveyed his interest to her. Held, that the wife could not assert a homestead exemption in the interest acquired after the indebtedness was incurred, for Rev. St. 1909, § 6711, makes a homestead subject to levy and execution upon a cause of action existing at the time of its acquisition.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by S. O. Morrow and others against Emma Zane. There was a judgment for plaintiffs, and on defendant's motion execution was quashed. From an order denying a motion to set aside the order quashing the execution, plaintiffs appeal. Reversed and remanded.

On November 29, 1912, F. H. Zane and Emma Zane, the defendant, acquired an estate by the entirety in 80 acres of land in Jasper county by warranty deed conveying it to them as husband and wife, which deed was recorded on December 7, 1912. On the date the deed was made, they placed a mortgage on the land for $3,500, and later, on December 16, 1912, placed a second mortgage on the land for $400. Long prior to November 29, 1912, F. H. Zane, the husband, was indebted to the plaintiffs for the debt concerning which this litigation arises. On December 26, 1912, this debt of F. H. Zane was evidenced by a note given for $2,762.81 signed by himself and Emma Zane, the defendant, and it was on this date (December 26, 1912) that the defendant first became indebted to the plaintiffs. On February 6, 1913, Zane and the defendant moved onto the 80 acres and began to occupy the same as the home for the family. On May 17, 1913, F. H. Zane made a warranty deed to the defendant (his wife) for his interest in the 80 acres; the consideration recited being "the sum of one dollar, love and affection, and other valuable consideration" (shown further on to be $1,500 owing from the husband to the defendant). This deed was made subject to the first and second mortgages aggregating $3,900 which the defendant assumed and agreed to pay.

On August 18, 1913, F. H. Zane went into bankruptcy. In his schedule of assets he did not list any interest in the 80 acres. This debt to the plaintiffs was listed. On the sheet in the schedule providing for any claim the bankrupt may have on which to claim his exemptions appears the following:

"As to his homestead rights, your petitioner recites that he has already exercised those homestead rights by conveying to his wife north half of the southeast quarter of section 18, township 29, range 30. Your petitioner recites that this conveyance was made by him to his wife conveying to her his equity in the above-described real estate; said real estate being subject to prior deeds of trust aggregating $3,900 and the equity therein not exceeding in value the sum of $1,500. That your petitioner makes in his homestead claim except the claim above recited, to wit, that he has conveyed his homestead to his wife and that the same is now being occupied by himself and his family. Your petitioner also recites that at the time he conveyed the property last above mentioned he was indebted to his wife for over $1,500 and that said conveyance was made in consideration of this indebtedness."

The trustee in bankruptcy set aside to the bankrupt the 80 acres of land as his homestead. Exceptions to the action of the trustee in this regard were filed by the plaintiffs and other creditors, and at the time of the trial of this case the exceptions were still pending in the bankruptcy court and undisposed of.

At the February term, 1914, the plaintiffs commenced suit against Emma Zane on the note of December 26, 1912, and in March following, when the case came on for hearing, judgment was rendered in plaintiffs' favor against Emma Zane for the sum of $2,934.57, the amount of the note with interest to the date of judgment, and for costs, and that execution issue therefor.

The sheriff served on Emma Zane, the defendant, a notice of her exemptions as required by statute. Emma Zane then filed with the sheriff a written notice of claim of homestead, which claim described the real estate above referred to, and set out that the equity therein was less than the $1,500 homestead right under the statutes of the state of Missouri; that said homestead rights in the 80 acres of land were acquired by her on November 29, 1912; and she claimed the same as exempt. The sheriff upon the instruction of the plaintiffs and without appraisement or any other proceedings advertised the property for sale. The defendant then filed a motion to quash the levy, which motion was based upon the following grounds: (1) The sheriff of Jasper county had levied upon and advertised for sale the exempt homestead of the defendant. (2) The sheriff, after serving upon defendant notice of exemption and receiving from defendant her claim of exemptions specifying the homestead, levied upon as exempt, advertised the same for sale. (3) The sheriff failed to comply with the provisions of article 18 of the Revised Statutes of Missouri, with reference to execution exemptions and sale of property. (4) The sheriff in levying on defendant's...