Ratliff v. Graves

• Citation: 33 S.W. 450,132 Mo. 76
• Parties: Ratliff v. Graves, Appellant
• Decision Date: 24 December 1895
• Court: United States State Supreme Court of Missouri

33 S.W. 450

132 Mo. 76

Ratliff v. Graves, Appellant

Supreme Court of Missouri, First Division

December 24, 1895

Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.

Reversed and remanded.

Ben Eli Guthrie for appellant.

(1) Defendant's demurrer to plaintiff's evidence should have been sustained. Vogler v. Montgomery, 54 Mo 577; Harrington v. Utterback, 57 Mo. 519; Pease v. Cameron, 102 Mo. 568. (2) The statute provided that the widow and children of the homesteader shall take the same estate therein of which the deceased died seized; and that estate this court has determined passed to the widow and her heirs free from the payment of all debts of the deceased. Skouten v. Wood, 57 Mo. 380; Gragg v Gragg, 65 Mo. 343; Freund v. McCall, 73 Mo 343; Goode v. Lewis, 118 Mo. 357; Weatherford v. King, 119 Mo. 51. (3) An execution sale conveys no title as to property exempt from execution. (4) Defendant's instructions 2, 4, 5, should have been given. If the possession of the Rookses was adverse to the plaintiff, it had, by lapse of time, defeated all the rights, if any, he had acquired under the sheriff's deed. Dalton v. Bank, 54 Mo. 105; Ridgeway v. Halliday, 59 Mo. 444; Barry v. Otto, 56 Mo. 177.

Dysart & Mitchell for respondent.

(1) This case is governed by the doctrine announced in the recent decisions of this court. Miller v. Leeper, 120 Mo. 466; Schaeffer v. Beldsmeier, 107 Mo. 314; Poland v. Vesper, 67 Mo. 727; Anthony v. Rice, 110 Mo. 223. (2) John Rooks would have been entitled to a homestead in the land, once acquired, even if he had no wife or minor children at the time of the sheriff's sale, that is, for himself, and that interest would have been a life estate only. Leake v. King, 85 Mo. 413; Silloway v. Brown, 12 Allen, 30; Taylor v. Boulware, 17 Tex. 74; Myers v. Ford, 22 Wis. 137.

Brace C. J., and Barclay, Macfarlane, and Robinson, JJ.

OPINION

Per Curiam

The action is ejectment, and the dispute involves the title to a piece of land, eighty acres in size, in Macon county. The trial court found for plaintiff. Defendant appealed after taking proper steps to present the merits for review.

The controlling facts are admitted.

Mr. Graves is in possession as tenant of certain members of the family of Rooks. Plaintiff claims title by purchase of the land at an execution sale on a judgment against the former owner, John Rooks.

To quote the language of the statement in this court by plaintiff's counsel, touching the vital facts of the case:

"The land in question was owned and occupied as a homestead by John Rooks, senior, at and prior to the rendition of the judgment of C. Aultman & Co. on the 5th day of Feb., 1873, against the said John Rooks. The judgment was for the sum of $ 219.76.

"An execution issued on said judgment, and the lands in question were sold thereunder, and conveyed to one F. Ames by sheriff's deed, on the 8th day of September, 1873, and his deed was duly recorded on the 11th day of September, 1873. Afterwards, on the 2d day of January, 1874, the said F. Ames and wife, by warranty deed, conveyed the lands in question to the plaintiff, A. E. Ratliff, which deed was duly recorded on the 5th day of Feb., 1874. It is conceded that at the date of the said judgment and of the said sheriff's sale to Ames, the said John Rooks had the legal title to the said lands, and was in the possession of the same, having a wife and some minor children, and that he resided upon and occupied the same as his home until the date of his death."

Mr. Rooks, senior, died in 1891. His wife died at an earlier date, and all his children were of age when he died.

Neither the plaintiff nor Mr. Ames, his grantor, was at any time in possession of the property from the date of the execution sale in 1873 until the death of Rooks in 1891.

This action was begun in 1893.

The defenses are a denial of plaintiff's title, and a plea of the statute of limitations barring actions for land.

The theory on which the learned trial judge proceeded is evident from the following instruction, given for plaintiff:

"1. The jury are instructed that if they believe from the evidence that plaintiff claims said land by and from Ames and that Ames purchased same at sheriff's sale, read in evidence, and that at the time of the execution and delivery of said sheriff's deed, John Rooks was occupying and owning said land as a homestead, and that the wife of John Rooks died in 1890, and that said John Rooks continued to occupy and hold said land as a homestead, with an unmarried daughter until his death in 1891, and died...