New Madrid Banking Company v. Brown
| Decision Date | 19 November 1901 |
| Parties | NEW MADRID BANKING COMPANY, Appellant, v. BROWN et al |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.
Affirmed.
James Orchard for appellant.
(1) This being a voluntary conveyance on the part of R. M. Morgan to his children, the respondents herein, it is in law fraudulent as to existing creditors, unless he was solvent at the time the deed was made, and had ample means to pay his debts; and it devolves on the donees, the respondents herein to show that Morgan was solvent and able to pay his debts and unless they have so done, the finding should be for the appellants. Snyder v. Free, 114 Mo. 360; Hoffman v. Nolte, 127 Mo. 135. (2) The question to be decided is, whether he had abandoned his homestead in Pemiscot county, Missouri. We think the evidence shows conclusively that he had. This being the case, the rights of a homestead exemption cease to exist when the occupant leaves the premises with the view of acquiring a residence elsewhere and with no intention to return. The intention to return must be formed at the time of the removal from the premises, in order to preserve and continue the homestead exemptions. Duffey v. Willis, 99 Mo. 132; Smith v. Bunn, 75 Mo. 559; Kaes v. Gross, 92 Mo. 647. The latter case has been overruled as to widows and minor children, but the rule laid down is applicable as to heads of families, as in the case at bar.
A. H. Livingston and Green & Garnett for respondents.
MARSHALL, J. Accompanying Remarks: VALLIANT, J. Marshall, J., concurs in these views.
This is a proceeding in equity to divest title to certain lands in Howell county, out of the defendants, and vest it in plaintiff, and for a decree putting the plaintiff in possession thereof, and for rents and profits. The circuit court decreed the possession to the defendants until the youngest one of them becomes of age, and adjudged the title and possession to the plaintiff thereafter. The plaintiff appealed.
The controversy arose in this wise: The defendants are the children and heirs at law of R. M. Morgan, deceased. The plaintiff claims title by virtue of a sheriff's deed to the land, under several judgments rendered against R. M. Morgan during his lifetime. It does not appear from the record whether the land was sold by the sheriff, as aforesaid, before or after Morgan's death. The defendants claim, and introduced evidence tending to prove, that the land was the homestead of their father during his life, and was not worth more than fifteen hundred dollars, and that upon his death it passed to them until the youngest child attained its majority and that three of them, at the time of the trial, were minors, aged eleven, eight and six years, respectively. On the other hand, the plaintiff admits that the land was occupied by Morgan as a homestead for some time before the judgments were rendered against him, and continued to be so occupied afterwards until his death, but claims that the debts evidenced by the judgments under which the land was sold on June 29, 1896, were valid and existing debts at the time Morgan acquired the land, and hence, neither he nor his heirs can claim it as exempted under the homestead laws. The defendants admit that the judgments are based upon indebtedness existing at the time their ancestor acquired this particular land, but avoid the conclusion of law asserted by the plaintiff by introducing evidence to show that this homestead was acquired with the proceeds of the sale of a former homestead that their father, in 1892, owned in Pemiscot county. The plaintiff, to parry the force of this claim of the defendants, introduced evidence tending to prove that while Morgan did own a homestead in Pemiscot county before the debts aforesaid were contracted, and while the land in controversy was acquired with the proceeds of the sale of the land in Pemiscot county, still, before such debts were contracted, he, Morgan, abandoned his homestead in Pemiscot county, moved his family and his residence to New Madrid, purchased and occupied a new homestead, declared his intention never to live in Pemiscot county again, continued to live with his family in the new homestead in New Madrid until his wife died, and then left New Madrid and lived in the county, with his children, for some time, and then in 1894 he sold the Pemiscot land and acquired the land in controversy and established his home in Howell county. To overcome this showing the defendants introduced evidence tending to show that Morgan did move his family from Pemiscot county to New Madrid, did purchase a house and live there until his wife's death, but that this was done without any intention of abandoning his homestead in Pemiscot county, and with the intention, all the time, of returning thereto, and that he moved to New Madrid only temporarily because his wife was sick and could not discharge the duties of a farmer's wife, and because New Madrid afforded school facilities for his children eight or nine months in the year, while in Pemiscot county the schools were only open about five months; and they further showed that while living in New Madrid he kept some of his personal property on the place in Pemiscot county, worked the farm, visited it nearly every week and stayed there with his family at least a part of the time during the vacation of the schools. The evidence further disclosed the fact to be that Morgan was insolvent (outside of this land) and that he caused the deed to the land in controversy to be made to his children, the defendants, and the plaintiff claims that this was done to cheat, hinder and delay his creditors, and, hence, asks to have the title divested out of them and vested in it.
It further appears from the evidence that this land is worth fourteen or fifteen hundred dollars and that the judgment and costs under which it was sold aggregated $ 448.84, and that the plaintiff, through its agent and attorney, became the purchaser thereof at the sheriff's sale for the sum of $ 25.
I.
It is manifest that the crucial question in this case is whether or not Morgan abandoned his homestead in Pemiscot county. If he did, then neither he nor his heirs can claim any homestead rights in this land, for the debts evidenced by the judgments under which it was sold were in existence at the time he sold the Pemiscot county land and invested the proceeds in this land. [State ex rel. v. Diveling, 66 Mo. 375; Berry v. Ewing, 91 Mo. 395, 3 S.W. 877; Buck v. Ashbrook, 59 Mo. 200; Stivers v. Horne, 62 Mo. 473; Peake v. Cameron, 102 Mo. 568, 15 S.W. 70; Smith v. Bunn, 75 Mo. 559; Duffey v. Willis, 99 Mo. 132, 12 S.W. 520.]
On the contrary if Morgan did not abandon his homestead in Pemiscot county, and if his removal to New Madrid was induced by consideration for his sick wife and to obtain better school facilities for his children, and if, when he so removed, and ever afterwards...
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