Peake v. Cameron

• Decision Date: 19 January 1891
• Citation: 15 S.W. 70,102 Mo. 568
• Parties: PEAKE v. CAMERON et al.
• Court: Missouri Supreme Court

15 S.W. 70

102 Mo. 568

PEAKE v. CAMERON et al.

Supreme Court of Missouri.

January 19, 1891.

HOMESTEAD — DEBTS INCURRED BEFORE ACQUISITION — RIGHTS OF VENDEE.

A debtor bought a homestead within the statutory limit, paying the consideration himself, and taking the deed in his wife's name to defeat creditors. While the homestead was occupied by the debtor and his family, two attachments were levied, — the first on a claim accruing after, and the second on a debt contracted before, the acquisition of the homestead. The land was sold under the first attachment, and the purchaser bought out the debtor and his wife, receiving possession from them. Held, that his title was no better than that of the debtor, and was subject to the lien of the second attachment, under Rev. St. Mo. 1879, § 2689, exempting the homestead of every head of a family; and section 2695, providing that the homestead shall be subject to execution and attachment on all causes of action existing at the time of its acquisition.

Appeal from circuit court, Jasper county; M. G. McGREGOR, Judge.

Rev. St. Mo. 1879, § 2689, exempts from execution and attachment the homestead of every housekeeper or head of family. Section 2695 is as follows: "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, and for this purpose such time shall be the date of the filing, in the proper office for the records of deeds, the deed of such homestead, and in case of existing estates such homestead shall not be subject to attachment or levy of execution upon any liability hereafter created."

Phelps & Brown, for appellant. Harding & Buller, for respondent.

SHERWOOD, J.

Ejectment brought in 1886 for a lot in Carthage. The separate answers of the defendants were general denials. Cameron, one of the defendants, was in possession of the lot at the time of suit brought, as tenant of Gaither, who was made a party defendant on his own motion. The salient facts in which this litigation arose are as follows: One McGregor conveyed the lot in controversy to one Mary Green, wife of H. P. Green. This conveyance was made May 21, 1881, and recorded June 2, next thereafter. This conveyance was made at the instance of the husband, the purchase money being furnished by him, and was made to defraud his creditors. At that time Green was indebted to plaintiff, as evidenced by a promissory note for $436.98, dated September, 1871, on which note were several credits for payments made thereon during the year 1881. Green and wife and family were in possession of the lot when the same was attached at the suit of Garrett & Gilliland, on December 21, 1882, for groceries sold to Green in that year. What was the ground of this attachment does not appear. On the same day, plaintiff also had the same lot attached at his suit, and it would seem this attachment was levied after the levy of the one already mentioned. Judgments by default were duly rendered in each case, and on the 12th of March, 1884, the said Peake commenced suit in equity in said court against said Green and wife, to which suit neither Garrett, Gilliland, nor Gaither were made parties, to subject the said lot to sale for the payment of his said note on the ground that it was conveyed to her in fraud of his rights as an existing creditor of Green; which suit was duly...