Murdock v. Dalby

• Decision Date: 28 November 1882
• Citation: 13 Mo.App. 41
• Parties: GEORGE MURDOCK, Appellant, v. MARGARET DALBY, Respondent.
• Court: Missouri Court of Appeals

13 Mo.App. 41

GEORGE MURDOCK, Appellant,

v.MARGARET DALBY, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 28, 1882.

APPEAL from the St. Charles Circuit Court, EDWARDS, J.

Reversed and remanded.

T. F. MCDEARMON and W. A. ALEXANDER, for the appellant: A homestead interest under the statute is a fee simple. A larger estate cannot be carved out of a smaller. The respondent had only a life estate.--Rev. Stats., sect. 2693; Skouten v. Wood, 57 Mo. 380; Jackson v. Bowles, 67 Mo. 609; Poland v. Vesper, 67 Mo. 627. The homestead interest--if any can exist in a dower interest--can vest only after the dower was set apart. Such homestead right, therefore, if any existed, was subject to sale under execution by the express provisions of the Homestead Act.--Rev. Stats., sect. 2695; Farran v. Quigley, 57 Mo. 284; Stivers v. Horn, 62 Mo. 473. The homestead is a statutory right, a strictly legal right, and equitable principles other than those recognized by the act cannot be invoked by one claiming the homestead right.-- Casebolt v. Donaldson, 67 Mo. 308. The respondent was not the head of a family.--Rev. Stats., sect. 2343.

C. DAUDT and BENJ. EMMONS, JR., for the respondent: A widow who occupies a homestead as a residence is the head of a family. The fact that her children have left her does not deprive her of her homestead rights.-- Vogler v. Montgomery, 57 Mo. 583; Brown v. Brown, 68 Mo. 388; Bunnell v. Hayes, 20 Law Reg. 751. A life estate will support a homestead.--Thomp. on Home. & Ex., sect. 174; Smyth on Home., sect. 114; The State ex rel. v. Diveling, 66 Mo. 375.

THOMPSON, J., delivered the opinion of the court.

This is an action of ejectment upon a sheriff's deed. The case was tried by the court without a jury, and judgment was rendered for the defendant. No exceptions were taken to the admission or exclusion of evidence, and no declarations of law were asked for or given. The substantial question for us to consider, therefore, is, whether the judgment was one which could properly be given under the pleadings and the evidence. McEvoy v. Lane, 9 Mo. 48. As there was no substantial conflict in the evidence, we have no difficulty in determining whether the judgment which was rendered was the judgment which properly should have been rendered.

The evidence shows that several judgments were rendered against the defendant in 1876, upon which executions were issued; that under one of these executions the land in controversy was laid off to the defendant as a homestead and an exemption in lieu of personalty. This land consisted of two tracts: First, a tract of 31.45 acres; and, secondly, an adjacent lot or tract of 3 1/2 acres. The former tract, in a proceeding for partition and dower between the Life Association of America and this defendant in 1878, was set apart to her as her dower interest in the lands of her deceased husband, Thomas Lindsay; and under the execution spoken of, the commissioners found it to be of the value of $1,500, and set it apart to her as her homestead. This exhausted the limit of value of the homestead exemption allowed by law. She then claimed an exemption in lieu of personalty under sections 9 and 11 of chapter 55 of Wagner's Statutes (now Rev. Stats., sects. 2343 and 2346), in an adjacent tract held by her in fee, and in lieu of such exemption, the commissioners set out to her three and a half acres of this tract, of the appraised value of $300.

These proceedings took place in April, 1878, under four executions in favor of different plaintiffs against this defendant. Notwithstanding these proceedings, pluries executions upon the same judgments were sued out; were levied on both of these tracts; and they were sold by the sheriff to the plaintiff, who was plaintiff in one of the executions, for the sum of $25. Under the sheriff's deed, which the plaintiff received, he seeks now to recover both tracts. The defence is, that the larger or dower tract is the homestead of the defendant, and that she is entitled to claim the smaller tract as an exemption in lieu of personal property, under the statute under which it was thus set out to her.

The defendant is a widow about sixty-eight years old. She was the wife of Thomas Lindsay, who died in 1841. He left the premises of which these are a part, paid for in part only, a house commenced, but unfinished, and left also to this defendant five children to support and educate. It appears that she paid for the land, and lived on it with her family until 1853, when she married Mr. Dalby, a Methodist clergyman. They then moved about from place to place in Illinois and Iowa, wherever his ministry took him, until about the year 1863, when they returned and lived for a time on a farm which Mr. Dalby owned in St. Charles County, on the Mississippi River. About this time--it is not necessary to be precise as to dates--William T. Lindsay, a son of Mrs. Dalby, returned from California and took charge of the farm, which embraced the premises in controversy. Mr. Dalby died in 1867, while temporarily at the place in controversy visiting his step-son, Mr. Lindsay, but while he and this defendant resided on his farm, just spoken of. After his death the defendant stayed upon his farm for awhile, and then came to the place in controversy to live with her son William, to whom she had leased it for a term of two or three years. In this state of things William died on the place in 1875, and Mrs. Dalby was left there alone. She has continued to reside upon it ever since, with no other family than a hired man, or perhaps, more properly speaking, a tenant or farm agent, who lives in her house, and for whom she keeps house, and also a negro boy whom she took from the poor house, and employs and keeps as a domestic servant, though not under any contract of apprenticeship. The house is a log house, containing but two substantial rooms. Upon this small tract of ground, and in this humble residence, this aged lady supports herself by selling a little butter and eggs to dealers in St. Charles.

1. Now, what are the grounds upon which we are asked to say, that she cannot claim the dower tract as her homestead?

It is contended that she cannot claim a homestead in this tract, because her estate in it is but a life estate--a dower interest. This point is clearly not well taken. Although the homestead in this state is a fee simple interest, where the estate which supports it is an estate in fee ( Skouten v. Wood, 57 Mo. 380), yet there may be a homestead reservation in a life estate, as well as in a fee simple estate. Thomp. on Home. & Ex., sect. 174; Deere v. Chapman, 25 Ill. 610; Potts v. Davenport, 79 Ill. 456.

But it is said that, as the dower of Mrs. Dalby was not set apart until after the judgments were recovered under which her interest in the land was sold to the plaintiff, she could not, as against these judgments, acquire a right of homestead in her dower interest by a subsequent admeasurement of dower. We do not agree with this view. Our statute relating to homesteads contains this provision: “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.”...