Mount v. Yount.

• Decision Date: 02 March 1926
• Docket Number: No. 3803.,3803.
• Citation: 281 S.W. 119
• Parties: MOUNT v. YOUNT.
• Court: Missouri Court of Appeals

281 S.W. 119

MOUNT v. YOUNT.

No. 3803.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge..

Action by F. E. Mount against J. H. Yount and another. After judgment for plaintiff, and before execution issued, defendant Minnie Yount was adjudged a bankrupt. From an order overruling motions of defendant J. H. Yount to quash a levy against his property and set aside a sale thereunder, he appeals. Reversed and remanded, with directions.

Ward, Reeves & Oliver, of Caruthersville, for appellant.

Bailey & Bailey, of Sikeston, for respondent.

BRADLEY, J.

This is an appeal from an order overruling motions to quash a levy and set aside a sale thereunder. March 22, 1922, plaintiff obtained a judgment against J. H. and Minnie Yount, husband and wife. Thereafter, and before the execution issued, Minnie Yount was adjudged a bankrupt. April 24, 1924, general execution issued against defendant J. H. Yount, and thereunder certain property was levied upon. Motion to quash the levy was filed, said motion being based on the ground that the property was not subject to execution. This motion was overruled, and the same day sale was had under the execution, and plaintiff purchased at said sale. Immediately thereafter motion was filed to set aside the sale, said motion being based upon the same grounds as in the motion to quash the levy. The motion to set aside was overruled, and defendant appealed.

The motions to quash and set aside were based upon the theory that the property levied upon was "burial ground," within the meaning of our exemption statutes respecting burial grounds. Sections 1085, 1086, and 1612, R. S. 1919. The city of Sikeston, a city of the fourth class, in accordance with sections 8491 and 8492, R. S. 1919, owned a public cemetery, known as the Sikeston Cemetery. July 9, 1918, the board of aldermen passed an ordinance authorizing the conveyance of a certain described trace or plot in said cemetery to the Missouri-Illinois Mausoleum Company. The tract to be conveyed was not in the platted portion, and was described in said ordinance as follows:

"Beginning at a point seven feet south of the southwest corner of lot number 474, and running southwardly one hundred and one feet to a point; thence eastwardly fifty-four feet; thence northwardly one hundred and one feet; thence westwardly fifty-four feet-to the point of beginning."

This ordinance further provided that there should be constructed on the above-described tract a community mausoleum in accordance with certain plans and specifications. July 10, 1918, and in accord with said ordinance, the tract or plot of land described therein was conveyed to the mausoleum company. The community mausoleum was constructed on said plot, and on August 11, 1919, defendant J. H. Yount and Hal Galeener, brothersin-law, jointly purchased for $3,500 from the trustee of the mausoleum company entombment space in said mausoleum, described as :

"Private room number 1 in section A, containing ten crypts, in Sikeston Mausoleum, located in the city cemetery, Sikeston, Missouri, as per plat on file in the office of the recorder of deeds of Scott county, state of Missouri."

This entombment space, described in the deed to Yount and Galeener, had the name "Yount" engraved on one half thereof, and the name "Galeener" on the other half. No corpse had been placed in this entombment space. It was admitted "that the mausoleum is in the public cemetery" and that the undivided one-half interest in private room No. 1 in section A exceeded $100 in value. Defendant Yount contends that the property levied upon and sold is exempt, because it is a burial ground in a public cemetery. Plaintiff contends that the property levied upon and sold is at most no more than a private burial ground, and, being in excess of $100 in value, is subject to execution.

Sections 1085 and 1086, R. S. 1919, heretofore referred to, are as follows:

Section 1085: "Lands appropriated and set apart as burial grounds, either for public or private use, and so recorded in the recorder's office of the county where such lands are situated, or any burial ground that may have been used as such for ten years, shall not be subject to sale on execution, to dower, nor to compulsory partition: Provided, that the lands so appropriated and set apart as a private burial ground shall not exceed one acre in area or one hundred dollars in value."

Section 1086: "Lands or property, set apart as burial grounds, either for public or private use, and so recorded in the recorder's office of the county where such lands are situated, or any burial ground that may have been used as such for ten years shall not be subject to sale on execution, to dower, nor to compulsory partition: Provided, that the lands so appropriated and set apart as a private burial ground shall not exceed one acre in area or one hundred dollars in value; and provided further, that nothing contained in this section shall be so construed as to exempt any such burial mound or cemetery property from being liable for special assessments for street improvements, when such assessment is levied by an incorporated city in this state."

The city of Sikeston, under section 8491, R. S. 1919, is authorized to hold real estate "for public cemeteries." It stands admitted that the community mausoleum mentioned in this record is "in the public cemetery." The argument presented in support of the proposition that the entombment space here in question was private in nature and subject to execution is: (1) That the community mausoleum was constructed on a plot or tract that was not platted ; and (2) that the property levied upon and sold exceeded $100 in value. It will be noticed that sections 1085 and 1086 are identical, except the words "or property," instead of "appropriated and," are used after the word "lands" in the first line of section 1086 and the second proviso in section 1086. And defendant argues that the use of the words "or property" in section 1086 makes it certain that the...