Perkins v. Quigley

• Decision Date: 31 May 1876
• Parties: EDWARD F. PERKINS Respondent, v. WILLIAM QUIGLEY, Appellant.
• Court: Missouri Supreme Court

62 Mo. 498

EDWARD F. PERKINS Respondent,

v.WILLIAM QUIGLEY, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Linn Circuit Court.

Brownlee, for Appellant.

I. The sheriff's deed is void on its face, inasmuch as it does not recite that executions had been issued on the judgments recited in the deed by the justice, and that they had been returned nulla bona before the executions were issued by the clerk of the circuit court. (Wagn. Stat., 839, § 14; Id., 612, § 54; Coonce vs. Munday, 3 Mo., 264; Waddell vs. Williams, 50 Mo., 224.) If the execution must contain this recital, then the deed must, or some evidence must be produced to, show that the execution was properly issued. (Carr vs. Youse, 39 Mo., 349, and authorities above cited.)

II. The head of a family can claim, and hold, two small tracts of land which adjoin each other, as his homestead, using and occupying them both as such, they not containing a greater number of acres than one hundred and sixty, nor exceeding in value the sum of fifteen hundred dollars. (Wagn. Stat., 697, § 1.)

A. W. Mullins, for Respondent.

I. The sheriff's deed contained all the recitals required by the statute. (Wagn. Stat., 612, § 54.) No further evidence was necessary in order to its admission. (Id., 612, § 57; McCormick vs. Fitzmorris, 39 Mo., 24; Merchant's Bank vs. Harrison, 39 Mo., 443; Carpenter vs. King, 42 Mo., 219.)

The case of Coonce vs. Munday (3 Mo., 373) has been modified and substantially overruled by subsequent decisions of this court. (Norton vs. Quimby, 45 Mo., 388.)

II. The defendant occupied and claimed another farm as his homestead, and this farm was subject to levy. (Wagn. Stat., 699, § 8.)

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment, and the title of the plaintiff was derived from a sale and execution levied on land claimed to be protected from execution under the homestead law.

The execution was dated April 3, 1873, and was levied on the 4th of April, 1873, and the sale took place in June, 1873. The notes, upon which the judgment was based, were given in September, 1871.

The defendant in the execution bought a tract of sixty acres of one Henderson in February, 1871, and his deed was recorded in April, 1871. The defendant moved on to the place with his family, and in the month of May, 1871, he bought another tract, adjoining the former, of about seventy-nine or eighty acres from one Wells, and in the fall of that year moved over to this last place, called the Wells place, with his family; and his son (who seems to have been a man of family) moved into the house first occupied by the defendant in the spring and summer of this year. The father and son cultivated the two places conjointly. At the date of the levy and sale above stated, the defendant and his wife were living on the Wells place. The value of either tract, or both, is not shown by any evidence in the case, except that the deeds recite the payment of $1,000 for the Henderson place, and $1,500 for the Wells place.

The court gave the instructions asked by the plaintiff, and also the one asked by defendant, and found a verdict (there being no jury) for the plaintiff, and judgment was entered accordingly.

The instruction given for the plaintiff was as follows:

“If the court sitting as a jury believe from the evidence, that the indebtedness from the defendant to the plaintiff, upon which the judgments were obtained, as recited in the sheriff's deed read in evidence by plaintiff, accrued in the month of September, 1871, or about that time, and that afterwards defendant purchased the premises described in the deed read in evidence from E. P. Wells and wife, which deed is dated May 12, 1872, and that defendant moved to said last named premises and was occupying the same with his family as his homestead at the time plaintiff filed the transcript recited in the sheriff's deed in the office of the clerk of this court, and also at the time the premises in question were sold by the sheriff, and purchased by plaintiff, then the plaintiff is entitled to recover.”

2. “The defendant is not entitled to hold two homesteads, exempt from levy and sale under execution, at the same time; and if the court, sitting as a jury, believe from the evidence, that the defendant moved with his family from the Henderson place, the premises now in controversy, to the Wells place, and was occupying the same as his homestead, and claiming as such at the time the sheriff levied upon and sold the Henderson place, then the finding should be for the plaintiff.”

The instruction given for the defendant was as follows:

“If the court believe from the evidence, that the defendant had acquired the tract of land here sued for, and had filed his deed to the same for record, before contracting the debts upon which the judgments were rendered and execution issued recited in the sheriff's deed read in evidence by plaintiff, and had ever since the said purchase used or occupied the same as his homestead, never having intentionally abandoned the same as such, having all that time a family of his own with whom he resided, it is bound to find for defendant, provided it is further found, that said tract of land does not exceed in value, and did not at the time of the sheriff's sale, the sum of $1,500, and does not contain a...