Palmer v. Omer

• Citation: 295 S.W. 123,316 Mo. 1188
• Decision Date: 11 April 1927
• Docket Number: 25469
• Parties: John A. Palmer, As Trustee in Bankruptcy of William E. Omer, Appellant, v. William E. Omer and Jennie Omer
• Court: Missouri Supreme Court

295 S.W. 123

316 Mo. 1188

John A. Palmer, As Trustee in Bankruptcy of William E. Omer, Appellant, v. William E. Omer and Jennie Omer

No. 25469

Supreme Court of Missouri

April 11, 1927

Motion for Rehearing Denied May 24, 1927.

Appeal from Ralls Circuit Court; Hon. Charles T. Hays Judge.

Reversed and remanded (with directions).

Eby & Hulse and Rendlen & White for appellant.

(1) Both ownership and occupancy are required to constitute a homestead, and no head of a family can have two homesteads at the same time. When William E. Omer purchased 64 acres of land in February, 1910, placed his deed on record and went into possession and occupancy of said land, his homestead therein had been acquired and became completed. Thompson on Homestead and Exemptions, secs. 225, 245, 246; Freeman on Executions, sec. 248; Finnegan v. Prindeville, 83 Mo. 517; Bunn v. Lindsay, 95 Mo. 250; Kendall v Powers, 96 Mo. 142; Peake v. Cameron, 102 Mo. 568; St. Louis Brewing Assn. v. Howard, 150 Mo. 445; Rouse v. Caton, 168 Mo. 288; Scheerer v Scheerer, 229 S.W. 192. (2) A homestead, after it is acquired, may be abandoned by the owner thereof, and removal from the homestead, coupled with the acquisition of a new homestead, is conclusive proof of abandonment. 29 C. J. 944, sec. 367; Smith v. Bunn, 75 M. 559; Keas v. Gross, 92 Mo. 647; Duffey v. Willis, 99 Mo. 132; Rouse v. Caton, 168 Mo. 288. (3) After he abandoned his homestead in said land and long before he returned thereto in the spring of 1921 to reside thereon, he contracted the indebtedness in question. Under this state of facts the newly acquired homestead in said land upon his return thereto is not exempt from the payment of said indebtedness, and he did not own and was not entitled to claim a homestead in said land on June 15, 1921, which is exempt from the payment of said indebtedness. And if said William E. Omer did not own and was not entitled to claim a homestead in said land on June 15, 1921, exempt from the payment of said indebtedness, then it follows that defendant Jennie Omer, by the fraudulent deeds in question dated June 15, 1921, did not acquire any right, title or interest in or to said land. Smith v. Bunn, 75 Mo. 559; Keas v. Gross, 92 Mo. 647; Duffey v. Willis, 99 Mo. 132; New Madrid Banking Co. v. Brown, 165 Mo. 32; Rouse v. Caton, 168 Mo. 288.

E. L. Alford for respondent.

(1) The homestead, on June 15, 1921, was solidly bottomed on both ownership and occupancy -- actual occupancy, as the housekeeper and head of a family on said date and for months prior thereto, and ownership, dating back to March 2, 1910, the date when his deed was filed for record. The homestead statutes are clear and plain, and need no special construction. Sec. 5853, R. S. 1919, defines the homestead, and plainly says that such homestead shall be exempt from levy under attachment and execution "except as herein provided." The single exception provided by statute is found in Section 5860, where it is provided that the homestead shall be subject to attachment and execution where the cause of action existed at the time of the acquiring of the homestead, and this section definitely fixes the time of the acquiring of the homestead to be the date of the filing in the proper office for the recording of deeds the deed to such homestead. These provisions are so plain, explicit and clear as to leave no room for construction. Acreback v. Myer, 165 Mo. 685; Clark v. Thias, 173 Mo. 628, 651; Sperry v. Cook, 247 Mo. 132; Payne v. Fraley, 165 Mo. 191; Davis v. Land, 88 Mo. 436. (2) To place a homestead beyond the reach of a creditor, two things only are necessary: first, that the deed by which the land was acquired must be filed in the office of the recorder of deeds at a date earlier than the creation of the debt; and second, that at the time of levy by attachment or execution the homesteader must be the head of a family and residing on and occupying the land as his homestead. Sperry v. Cook, 247 Mo. 132; Clark v. Thias, 173 Mo. 628; Sharp v. Stewart, 185 Mo. 518; Finnegan v. Prindeville, 83 Mo. 517; Davis v. Land, 88 Mo. 436; Peake v. Cameron, 102 Mo. 568; St. Louis Brewing Assn. v. Howard, 150 Mo. 445. (3) When William E. Omer, in March, 1921, moved back and established his home on the land in question, the requirements of actual visible occupancy as a homestead was complied with, and his homestead right by virtue of the statutes and the decisions of this court immediately related back to the time when his deed to this land was placed of record, to-wit, March 2, 1910, and his homestead right was complete as against all debts by him created subsequent to March 2, 1910. In the interval between March 2, 1910, and March, 1921, when he resumed the occupancy of the land, no creditor had seized the land by attachment or execution. Omer and his family continued to occupy the land as a homestead down to and including the date, June 15, 1921, when he conveyed the land to his wife by the deed herein attacked. It made not the slightest difference that Omer had previously moved off the homestead and acquired another homestead. It was sufficient if he left his secondly acquired homestead and readopted his former homestead as his actual homestead in March, 1921, since in the meantime no judgments had been entered against him and become a lien on the first homestead, and no levy by attachment or execution had been made. Sec. 5860, R. S. 1919; Sperry v. Cook, 247 Mo. 132; Sharp v. Stewart, 185 Mo. 518, 530; Finnegan v. Prindeville, 83 Mo. 517; Beckmann v. Meyer, 75 Mo. 333; Davis v. Land, 88 Mo. 436. (4) The homestead statutes, because of the benevolent purposes sought to be accomplished by them, have been in all instances liberally construed by the courts in favor of the homesteader. The courts have never shown any solicitude for the creditor in the construction of these statutes. Sharp v. Stewart, 185 Mo. 518, 529; Payne v. Fraley, 165 Mo. 191; Clark v. Thias, 173 Mo. 650; Keeline v. Sealy, 257 Mo. 515.

OPINION

Atwood, J.

This is a suit instituted by John A. Palmer as Trustee in Bankruptcy of William E. Omer against the said William E. Omer and his wife Jennie Omer for the purpose of setting aside, cancelling and annulling a certain warranty deed executed on June 15, 1921, by the said William E. Omer and wife to George E. Elam, purporting to convey to the said Elam for the consideration of "$ 1.00 and other valuable considerations," 64 acres of land off of the west side of the Southwest Quarter of Section 17, in Township 55, Range 6, in Ralls County, Missouri; and for the further purpose of setting aside, cancelling and annulling a certain quit-claim deed executed on the same date by the said Elam to the said Jennie Omer, purporting to convey said real estate to her for the consideration of "$ 1.00 and other valuable considerations."

Plaintiff's petition charged that the deeds aforesaid were voluntary conveyances, without any valuable consideration, and executed for the fraudulent purpose, design and intent on the part of said William E. Omer and his wife Jennie Omer, of defrauding the creditors of the said William E. Omer, particularly the People's Bank of Center, Missouri, which bank was practically the only creditor of the said William E. Omer, who by said conveyance rendered himself insolvent, and said petition prayed that said deeds be cancelled and annulled and the title of said real estate divested out of Jennie Omer, and declared invested in plaintiff as trustee, as a part of the estate and assets of the said William E. Omer, bankrupt.

The said William E. Omer, although duly served with process, failed to answer or appear, and default judgment was rendered against him. The separate answer of defendant Jennie Omer, aside from formal allegations which were admitted, denied the allegations of said petition, and as an affirmative defense alleged that the said William E. Omer was, on said 15th day of June, 1921, the owner of and entitled to a homestead in said real estate, which homestead was exempt from the payment of said indebtedness owing to said People's Bank, and that by said warranty deed and said quit-claim deed such homestead was conveyed to her; that thereafter she owned and held the same free from the claims of said People's Bank on account of said indebtedness due it from the said William E. Omer, and that on July 27, 1922, she and her said husband executed a deed of trust on said land to secure an indebtedness of $ 2500 to the Hannibal Loan & Investment Co., which constitutes a valid lien, and no part of said indebtedness has been paid.

Plaintiff's reply denied that the said William E. Omer was, under the laws of Missouri, on said 15th day of June, 1921, the owner and entitled to a homestead in said real estate free and exempt from said claims of said People's Bank, and averred that the said William E. Omer abandoned his homestead in the 64 acres of land prior to the creation of his said indebtedness to said People's Bank, and acquired another homestead in said town of Center in and upon which he resided with his family for about two years before moving back to said land in the spring of 1921.

The case was tried by the court without the aid of a jury and decision rendered finding all of the issues of law and fact for the plaintiff except as to the question of the homestead on which feature of the case the court found that defendant, Jennie Omer, was the owner of and entitled to a homestead interest of the value of $ 1,500 in the land in controversy exempt from the payment of any portion of the indebtedness due from defendant William E. Omer to the People's Bank of Center, Missouri; and the court under its judgment and decree sustained the deeds in controversy and held the same valid as to the homestead...