R. F. C. v. Ball

• Citation: 206 S.W.2d 35,239 Mo.App. 1189
• Parties: Reconstruction Finance Corporation, a corporation, Appellant, v. Claude Ball, Respondent, First National Bank of Monett, Garnishee
• Decision Date: 27 October 1947
• Court: Missouri Court of Appeals

206 S.W.2d 35

239 Mo.App. 1189

Reconstruction Finance Corporation, a corporation, Appellant, v. Claude Ball, Respondent, First National Bank of Monett, Garnishee

Court of Appeals of Missouri, Springfield District

October 27, 1947

Motion for Rehearing or to Transfer, Denied November 26, 1947.

Appeal from the Circuit Court of Lawrence County; Hon. Emory E Smith, Judge.

Reversed and Remanded.

James E. Sater, Monett, Missouri, Attorney for appellant.

The respondent admitted that, at the time of the garnishment, and for along time prior thereto, he was a resident of the State of Michigan, and that he intended to transfer the garnisheed funds to that state. The testimony shows that the respondent had abandoned the homestead. The circumstances of the sale and the terms thereof are inconsistent with the thought of reinvestment in a homestead. Klotz v. Rhodes et al., 240 Mo. 499; Kaes v. Gross, 92 Mo. l. c. 656; Sorrell v. Bradshaw 222 S.W. 1024; Duffey v Willis 99 Mo. 132. In the case of Klotz v. Rhodes, supra, the court said: "So, too, his conduct may be such that in the law he will be presumed to have abandoned the idea of reinvesting the proceeds of a homestead in a new homestead. Such is the case at bar." The selling of the homestead to be paid for whenever the purchaser "could" certainly is an an abandonment of the right of reinvesting the proceeds of a homestead in a new one, and such terms are wholly inconsistent with the thought that a new homestead would be acquired with the proceeds. In the Klotz case, supra, the court also said: "While the law allows a person to sell one homestead and purchase another, which other shall be as fully exempted as the first, yet there being no time fixed by the statute for this reinvestment, the law steps in and fixes a reasonable time, as the date for the act of reinvestment and reoccupancy. It is also true that what is a reasonable time for such act of reinvestment and reoccupancy is dependent somewhat upon circumstances, yet it cannot be said that six years with no excusing circumstances, is a reasonable time." Certainly, under the terms of this sale, indefinite as they were, with no set time for payment, the respondent would not be given a reasonable time to invest the proceeds. In the case of Duffey v. Willis, 99 Mo. 132, the court said: "The question of abandonment is one of fact, and each case must, in a great measure, rest upon its own particular facts. The right of a homestead exemption ceases to exist when the occupant leaves the premises with a view of acquiring a residence elsewhere, and with no intention to return. The intention to return must be formed at the time of the removal from the premises in order to preserve and continue the homestead exemption." This rule will apply with equal force to the right to invest the proceeds of one homestead in another homestead, and the terms of the sale clearly show no intention at the time of the sale to reinvest the proceeds in another homestead. In Kaes v. Gross, supra, l. c. 655, The Supreme Court said: "The removal of a family from the homestead constitutes a prima facie case of abandonment, and raises a presumption against the claim of homestead, which must be rebutted before such claim can successfully be asserted." The operation of the statute in respect to homesteads is restricted to residents of the state, and it has always been the policy of the law that non-residents or those intending to change their residence from the state, have no exemptions. State Bank of Eagle Grove v. Dougherty, 167 Mo. 1: In this case the Supreme Court said: "The right of homestead is purely a creature of statute and such statutes can have no exterritorial force, and must be construed to apply to homesteads within the State of the enactment. "When the proceeds of the homestead in Iowa were invested in a homestead in Missouri that homestead was not exempt from execution for the debt in question, which existed before the homestead was acquired." The weight of authority supports the rule just announced. This rule is announced also in Corpus Juris Secendum, Volume 40, page 540, Section 00, as follows: "Where a debtor may and does exchange his homestead for another, the new homestead stands in the place of the old homestead, and is liable or exempt, as the case may be to the same extent as was the homestead for which it has been substituted. The rule, however, has no application in respect to a homestead purchased with the proceeds of a prior homestead where such proceeds have been subjected to an intervening use, or to a homestead purchased in another state." From this rule, it necessarily follows that the proceeds deposited in the bank, owned by a non-resident, and intended to be transferred to another state, are subject to levy. Asi de from the question of abandonment of the homestead, the respondent, being a non-resident of the state at all of the times involved in this controversy, is not entitled to exemptions. The policy of the law is that all exemptions are extended to its citizens only. The legislature recognized this policy and enacted Section 1400, Revised Statutes, 1939, which is as follows: "Any person holding or who may hereafter hold a judgment against another, who is about to leave the state, may have an execution issued against the property and effects of such person, or any part thereof, sufficient to satisfy said judgment and all cost that has accured or may hereafter accrue. In enforcing such execution no exemptions shall be allowed the execution debtor." Exhibit 1, executed by all the heirs of the deceased wife, is inconsistent with the theory that the money, being on deposit was for the purpose of reinvestment in a homestead, and provides: "we hereby acknowledge receipt of the payment to us $ 1,472.71 which is the balance of a checking account in the name of Mrs. Florence Ball," and the money was directed to be given to the respondent herein, and the exhibit further recited that there were no debts or obligations against the said Florence Ball. This Exhibit clearly estopped the estopped the respondent from claiming the funds are exempt from garnishment.

Gardner & Gardner, Monett, Missouri, Attorneys for respondent.

Proceeds from the sale of a homestead are exempt from execution where it is the intention of the seller to invest such proceeds in another homestead and such action is taken within a reasonable time. Sec. 616, Mo. R. S. 1939; Martin v Cox, 199 S.W. 185; State ex rel. Schneider v. Hull, 74 S.W. 888, 99 Mo.App. 703; Zollinger v. Dunnaway 78 S.W. 666, 105 Mo.App. 36. Abandonment of a homestead is a question of intention. Removal of household goods during temporary business venture or rental of property from month to month is not abandonment of the homestead. Pocoke v. Peterson, 165 S.W. 1017, 256 Mo. 501; Duffey v. Willis 12 S.W. 520, 99 Mo. 132. Leaving the state during the Civil War because of unsettled conditions did not amount to an abandonment of the homestead. Leake v. King, 85 Mo. 413. Voting outside the state does not constitute abandonment. Snodgrass v. Copple, 111 S.W. 845. An intent on the part of the person owning the home to leave the state is no ground for attachment of a debtor's homestead. Davis v. Land 88 Mo. 436. Under the evidence, there was no abandonment of the homestead in this case and even at the time of the trial, all of the proceeds from the sale of the homestead were not available for reinvestment in another homestead. Within ten days after a portion of the proceeds of the sale became available to respondent, he contracted for another homestead. Such a period cannot be held unreasonable. Rights under the attachment writ issued during that period are judged as of the time of issuance. Caldwell v. Renfroe, 73 S.W. 340. There can be no fraudulent conveyance of homestead property as far as creditors are concerned since they have no interest in that property. Davis v. Land, supra. Also, it is not necessary that the owner of the homestead claim the same since the homestead exemption provided for by statute is complete without any action on the part of the owner to claim it. Keene v. Wyatt, 63 S.W. 116; Vogler v. Montgomery, 54 Mo. 577, 584. Homestead laws are prompted by benevolent intentions and are to be liberally construed to protect the head of the family from creditors. Vogler v. Montgomery, supra. Although the case cited under point No. 2 by appellant on page 8 of its brief is distinquishable under the facts, the doctrine there enunciated conflicts with the benevolent purpose of the homestead laws as stated in the Vogler case, supra, and conflicts with respectable authority in Vermont and Texas. Keyes v. Rines, 37 Vermont 260 (approved in Cameron v. Abbot, 258 S.W. 562, 564, Texas.) Strawn Mercantile Co. v. First National Bank of Strawn 279 S.W. 473 (Texas). Since the rule announced in the case cited by appellant is so harsh, the Courts can soften its effects by requiring clear showing of the abandonment of a homestead or an abandonment of an intention to re-invest the proceeds from the...