Patton v. Buxton

• Decision Date: 19 December 1921
• Docket Number: No. 22164.,22164.
• Citation: 238 S.W. 118
• Parties: PATTON v. BUXTON.
• Court: Missouri Supreme Court

238 S.W. 118

PATTON v. BUXTON.

No. 22164.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Motion for Rehearing Denied March 14, 1922.

Appeal from Circtdt Court, Jasper County; J. D. Perkins, Judge.

Suit by Elizabeth A. Patton and others against C. Buxton. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. D. Harris, of Carthage, for appellant.

J. H. & W. E. Bailey, of Carthage, for respondents.

GRAVES, J.

The petition in this case is in two counts. The first is to quiet title, and the second is in ejectment. Defendant by answer avers that he is the owner of the land. The answer then pleads that defendant deraigned his title from one Jesse Gaumer, who died seized of the land in suit. This portion of the answer avers that Jesse Gaumer left a widow (a second wife) and children and grandchildren, all through the first wife; that the children were all of age at the death of Jesse Gaumer; that the land involved was duly set aside as the homestead by the probate court; that upon application for a sale of the land it was ordered sold by the probate court for the payment of debts, subject to the widow's homestead rights; that it was so sold, and the defendant is the purchaser from the vendee in such sale. Plaintiffs are children and grandchildren of Jesse Gaumer. One portion of the answer might be construed as a plea of estoppel in pais. The reply placed in issue the matters raised in the answer. Judgment was for plaintiffs upon both counts, and defendant has appealed. The widow died in 1912, and her homestead interest thereupon ceased. By reply it is admitted that there was not sufficient property out of which to pay the debts of Jesse Gaumer without the sale of this land. The land (52 acres) sold for $325 at the sale. The Homestead Act of 1895 (Laws 1895, p.185) was in effect at the death of Gaumer. The rights of the parties are governed by that act. The questions are, if sufficiently raised, (1) the validity or invalidity of this sale of the homestead, and, (2) conceding its invalidity, whether or not the acts of plaintiffs have estopped them. The latter question turns upon the pleadings, the facts, and the conduct of the case nisi. The former is a pure question of law.

I. Counsel for appellant is exceedingly frank upon the question of this sale of a homestead for the payment of debts under the act of 1895. He contends that such a sale will pass title, but frankly admits that such contention is contrary to our rulings. To use his language:

"But to arrive at this conclusion it must be frankly confessed that the majority opinion of this court in the case of Armor v. Lewis, 252 Mo. 568, 161 S. W. 251, and the opinions of this court in Broyles v. Cox, 153 Mo. 242, 54 S. W. 488, 77 Am. St. Rep. 714, and in Re Estate of Powell, 157 Mo. 151, 57 S. W. 717, and in Balance v. Gordon, 247 Mo. 119, 152 S. W. 358, would have to be overruled."

To the foregoing cases might be added Ehlers v. Potter (Mo.) 219 S. W. 915; Libby v. Boward (Mo.) 231 S. W. 600; Dennis et al. v. Gorman (Mo.) 233 S. W. 50. In Libbey v. Boward, supra, Bailey, C., who wrote the opinion in Fields v. Jacobi, 181 S. W. loc. cit. 68, in which he criticized some of our previous opinions, frankly admits that, upon a more thorough review of the law, he was in error in such criticisms. These cases all speak for themselves, and we shall not rehash what has been so thoroughly gone over. Suffice it to say that, under the rulings of all these cases, the sale of the homestead in the case at bar carried with it no title to the property. It was absolutely void, and can be invoked even in a collateral proceeding. The question has heretofore been well ruled, and we shall not depart from such rulings.

II. There is enough in the pleadings to raise the question of estoppel in pais. Whilst there are no authorities cited in the brief, the point is made in the brief, and it is therefore here for decision upon the facts. Couns...