Pocoke v. Peterson

• Decision Date: 02 April 1914
• Parties: MARGARET D. POCOKE and JOSEPH POCOKE v. E. M. PETERSON, Appellant
• Court: Missouri Supreme Court

165 S.W. 1017

256 Mo. 501

MARGARET D. POCOKE and JOSEPH POCOKE v. E. M. PETERSON, Appellant

Supreme Court of Missouri, First Division

April 2, 1914

Appeal from Buchanan Circuit Court. -- Hon. W. K. Amick, Judge.

Affirmed.

Broaddus & Crow for appellant.

(1) It is undisputed that Pocoke purchased this property subject to a deed of trust and afterwards borrowed money from various persons, giving deeds of trust to secure same; the property was sold under the first deed of trust for $ 1565, which was the exact amount of money due on notes secured by deeds of trust on the property and at that time the title to the property passed out of Joseph Pocoke and Mrs. Pocoke became the purchaser thereof at the sum of $ 1565, her husband borrowing $ 1250 as a part of the purchase price and paying the balance, so that Mrs. Pocoke did not in fact invest five cents in this property, her husband having borrowed $ 1250 and paid the balance of the purchase price out of his own funds, so that clearly Mrs. Pocoke holds the property in trust for the benefit of Pocoke and even if he had been occupying it from August 1, 1910, the date of recording the deed, until levied upon, he could not have claimed homestead right in the property because the debt due appellant by Joseph Pocoke was contracted on the 1st day of July, 1910 and the sale on execution conveyed good title to appellant and the court therefore erred in excluding the sheriff's deed. R. S. 1909, sec. 6711; Bank v. Fry, 216 Mo 24; Scharff v. McGaugh, 205 Mo. 344; Jones v Hogan, 135 Mo.App. 347; Adams v. Gosson, 228 Mo. 566. (2) In any event the interest in the real estate represented by the sum of $ 315 paid by Mr. Pocoke on the purchase price of the real estate is subject to execution, as Mrs. Pocoke is certainly trustee for the benefit of her husband to that extent. Joseph Pocoke lost all homestead rights in the real estate in controversy on the day of the sale and the fact that he purchased the real estate at the sale and caused the title to be placed in his wife, does not give him a homestead right in the property as against appellant. The evidence of occupancy by the Pocokes of the property in controversy prior to August 1, 1910, therefore was clearly erroneous. Pearman v. McKee, 79 Mo.App. 210; Casebolt v. Donaldson, 67 Mo. 308; Elstroth v. Young, 83 Mo.App. 253. (3) Under the allegations of this petition respondents had a complete and adequate remedy at law for the reason that if the property sold was the homestead of respondent the deed is absolutely void and would have been no bar in ejectment. Jewell v. Boardman, 181 Mo. 647; Buffington v. Corty, 195 Mo. 490. (4) Under all the evidence in this case the court should have found that there was no intention on the part of the parties to occupy the real estate in controversy as a homestead and clearly they were not occupying it at the time the execution was levied. Finnegan v. Pundeville, 83 Mo. 517; St. Louis B. Co. v. Howard, 150 Mo. 445. (5) The court clearly erred in permitting respondents to prosecute the present action while the motion in the original case of Peterson v. Pocoke was still pending and undetermined. Michelin T. Co. v. Webb, 143 Mo.App. 679; Graham v. Lee, 69 Mo. 339.

George W. Groves and O. W. Watkins for respondents.

(1) Creditors cannot look to exempt property for the payment of their debts. Moore v. Wilkerson, 169 Mo. 334; Chance v. Jennings, 159 Mo. 544; Banking Co. v. Brown, 165 Mo. 32; Hoselton v. Hoselton, 166 Mo. 182. The sale by the sheriff in this case was void and conveyed no title. Creech v. Childers, 156 Mo. 338. (2) A conveyance of a homestead, direct or indirect, from husband to wife, even without consideration, is good, and the husband and wife have all the rights of homestead in the property. Moore v. Wilkerson, 169 Mo. 334; Davis v. Land, 88 Mo. 436; Bank v. Guthrey, 127 Mo. 189; Kendall v. Power, 96 Mo. 142; Holland v. Kreider, 86 Mo. 59; Bank v. Brown, 165 Mo. 32. (3) It is immaterial whether in redeeming from trustee's sale Pocoke took the title in the name of himself or that of his wife. Spratt v. Early, 169 Mo. 357. Mrs. Pocoke had a right to claim a homestead in this lot. Sharp v. Stewart, 185 Mo. 518. The purpose of the homestead law is to protect the wife and children, if any, and not the husband alone. Meyer Bros. v. Bybee, 179 Mo. 354. (4) If the title to the homestead is in either husband or wife, they have a right to keep it free and clear of their liabilities except as against such liens as they may voluntarily place thereon. Peake v. Cameron, 102 Mo. 568; Macke v. Byrd, 131 Mo. 691; Ratliff v. Graves, 132 Mo. 76. The right of homestead was not lost by reason of executing deeds of trust. Worley v. Hicks, 161 Mo. 340; Burton v. Look, 162 Mo. 502. (5) There was no abandonment of the homestead. Bank v. Brown, 165 Mo. 32; Lawson v. Hammond, 119 Mo.App. 480; Rose v. Smith, 167 Mo. 81. There being no such thing in law as a fraudulent conveyance of an exempt homestead, and abandonment not having been pleaded, the question of abandonment cannot be considered in this case. Bently v. Blake, 153 Mo. 675; Bank v. Brown, 165 Mo. 32.

LAMM J. Bond, J., not sitting.

OPINION

LAMM, J.

From a decree in plaintiff's favor in the Buchanan Circuit Court, cancelling a sale on execution and a sheriff's deed of real estate on such sale, with ancillary injunctive relief, defendant appeals. Questions here are of a scope seeking both pleadings and facts. Attend to them.

Plaintiffs married in January, 1909, and sue as husband and wife on the eleventh day of July, 1911, by a bill in equity alleging, in substance, thus: At times mentioned they occupied lot thirteen in block twelve in Brookdale addition to the city of St. Joseph as a homestead, said lot being less than eighteen square rods of ground and not to exceed $ 3000 in value, encumbered by deed of trust liens. Subsequently, while such homestead existed, defendant obtained a judgment against them for fifty dollars, on which execution issued and was levied on said lot; that a sheriff's sale was made thereunder on advertisement, and defendant thereat was the purchaser, on a bid of ten dollars, on July 7, 1911, obtaining a sheriff's deed therefor; that plaintiffs had filed their deed for record prior to the time the debt was contracted which was merged in defendant's judgment; that the sheriff, failing to apprise plaintiffs of their right to hold the property as exempt from execution and of their exemption rights under sections 2179, 2180, and 2183, Revised Statutes 1909; failed to have the property appraised; that neither defendant nor the sheriff notified plaintiffs of their right to claim said property under the homestead laws of the State, and that by reason of the premises the levy of said execution was void, etc.; that defendant, under his execution purchase, now claims to own the lot and denies to plaintiffs their exemption and homestead rights; that he is threatening to take forcible possession under his deed and is about to do so. The bill also alleges equitable grounds for the interference of equity by injunction against his taking possession, and against his setting up or claiming any right, title or interest in the lot. The bill next sets up grounds for relief by adjudging and quieting title under former section 650, now section 2535, Revised Statutes 1909, and to that end avers that plaintiffs are the owners of the lot and that defendant claims some right, title or interest, etc. The prayer was for a decree determining title, and setting aside the sheriff's deed and sale, and for an injunction.

A temporary injunction issued, we infer, on that prayer.

To that bill defendant answered, denying all its allegations and further by way of affirmative matter, that the plaintiff, Joseph, on the sixth day of July, 1910, purchased said real estate in the name of his wife under foreclosure of a deed of trust; that the debt for which defendant secured judgment on which execution issued, followed by the levy, sale and sheriff's deed, was contracted prior thereto. It is charged, moreover, that Joseph's said purchase in the name of his wife was for the purpose of defrauding existing creditors and that he did not acquire a homestead by that purchase; that plaintiffs filed a motion on July 10, 1911, "in the original cause," stating the same facts now in their bill in the instant case, which motion is still pending and undisposed of and by reason thereof the court "has no power or jurisdiction to adjudicate the issues while the other cause is pending."

To that answer plaintiffs replied denying its allegations.

Presently defendant filed a motion to dissolve and the cause was tried on that motion and the merits.

The facts follow, to-wit:

The lot has a fifty-foot front and a back run of 120 feet. There is an old frame six-room house on it, not modern, and the value of the premises was less than $ 3000. The case may proceed on the assumption that neither the extent nor value of the ground prevents it from being a homestead in a city of the size of St. Joseph, to-wit, one of over 40,000 souls. [R. S. 1909, sec. 6704.]

For several years prior to 1909 plaintiff Joseph, a single man, owned the lot by a title of record. As said, in January, 1909, he married his coplaintiff, Margaret D., and at once commenced keeping house in said residence. There is no dispute but what from that time the Pocokes actually lived on the property as a homestead until the second or fifth day of May, 1911. It is contended by defendant and denied by plaintiffs that the homestead was abandoned at the date last mentioned. The record in that behalf will be set forth presently.

Going back a little, at the time of the Pocokes' marriage, the property was encumbered by two deeds...