Reed Bros. v. Nicholson

• Decision Date: 24 May 1905
• Citation: 88 S.W. 71,189 Mo. 396
• Parties: REED BROS. v. NICHOLSON et ux.
• Court: Missouri Supreme Court

88 S.W. 71

189 Mo. 396

REED BROS. v. NICHOLSON et ux.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

1. FRAUDULENT CONVEYANCES—HOMESTEAD EXEMPTIONS.

As, under Rev. St. 1899, § 3616, a homestead is exempt from attachment and execution, a conveyance thereof by a husband to his wife is not fraudulent as against his creditors.

2. HOMESTEAD—MORTGAGED PROPERTY.

Where the land is subject to a mortgage, the homesteader is entitled to a homestead to the amount of the exemption in what remains of the total value of the land after the mortgage is deducted.

3. SAME—SELECTION.

Under Rev. St. 1899, § 3617, conferring on a homesteader the right to designate and choose the part of the land which shall be exempt from execution under section 3616, a wife is entitled to select the particular part of land conveyed to her by her husband, to the value of the amount of exemption which she will retain as a homestead.

4. SAME—ILLEGAL SALE ON EXECUTION.

Under the further provision of said section 3617 making it the duty of the sheriff, on such designation or choice being made, or on refusal to make the same, to appoint three disinterested appraisers to value and set apart the homestead, and then to levy the execution on the residue of the real estate, where these prerequisites of the statute have not been observed any sale by a sheriff is void.

5. SAME.

The fact that a proceeding to set aside a conveyance by a husband to his wife of land as in fraud of creditors is one in equity does not change such homestead rights, and authorize a court of chancery to order the whole land sold, and the homestead exemption to be turned over to the homesteader in cash, instead of land, as even courts of equity are bound by the homestead laws of the state, and cannot order the homestead interest paid to the homesteader in cash, instead of allowing him to designate the particular piece of the land he will hold as such homestead.

6. SAME—SETTING APART.

Where a house is located on one of the 40's of land consisting of 160 acres, 120 acres of which, including the house site, is covered by a mortgage, it is possible for the homesteader to designate and choose lands of the value of the exemption, exclusive of the mortgage, out of the whole tract, and for commissioners appointed to value and set apart to him such a homestead in kind.

7. SAME—VALUATION.

Whether land subject to a mortgage exceeds in value the $1,500 homestead exemption, over and above the mortgage, can only be ascertained by commissioners appointed to value the land, as the statutes do not confer power on the court—even on a court of equity—to determine the question.

8. SAME.

In a proceeding in equity to set aside a conveyance of land by a husband to his wife as in fraud of creditors, the power of the court is limited to a finding that the money which purchased the land belonged to the husband, except a portion thereof belonging to the wife; and, on such finding, where the land is occupied as a homestead, the court is limited in its decree to directing the sheriff to give the homesteader the right to select the particular land he desires to hold as a homestead, and to appoint commissioners to value and set apart the same to him, and thereafter to direct the sale of any land in excess of area or value of the exemption, and the payment from the proceeds of the amount due the wife, and the application of the balance to plaintiff's judgment.

9. HUSBAND AND WIFE—POSSESSION OF WIFE'S PROPERTY.

In such action, evidence examined, and held insufficient to show a reduction by the husband to his possession of the wife's money invested by him in the land, so as to entitle him to such money under the rules of the common law.

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Bill by Reed Bros. against R. D. O. Nicholson and wife. Decree for plaintiffs, and defendants appeal. Reversed.

Henry Brumback and Gibbs & Henson, for appellants. Jos. M. McPherson and Wm. B. Skinner, for respondents.

MARSHALL, J.

This is a bill in equity to set aside a deed made by the defendant R. D. O. Nicholson to his wife, Nancy E. Nicholson, on the 27th of March, 1896, conveying to her the southwest quarter of the southeast quarter of section 26, township 29, range 25, and the west half of the northeast quarter and the southeast quarter of the northwest quarter of section 35, same township and range, in Lawrence county, Mo., on the ground that it was made to defraud the creditors of the husband—the plaintiffs among the number. The circuit court entered a decree in favor of the plaintiffs, and the defendants appealed.

The case made is this: On the 16th of October, 1895, the husband executed his note for $360 to one J. A. Fretwell or bearer, payable at six months; the consideration being the right granted to him to sell in Greene county, Mo., a certain patented bed brace. The note was not paid, but before maturity had passed into the hands of the plaintiffs herein, who on the 7th of July, 1896, instituted suit against the husband thereon, which resulted in a judgment in favor of the plaintiffs on the 28th of August, 1896, for $381.60. In the meantime the husband had made this deed, here sought to be set aside, to his wife, and after the return of the execution nulla bona the plaintiffs instituted this suit to set the same aside on the ground that it was fraudulent as to the husband's creditors. Upon the trial of this case the plaintiffs introduced the deed in question, and the records and files in the case of the plaintiffs against the husband on the note aforesaid, together with the execution and the return thereon. The plaintiffs then called the defendant Nicholson, the husband, and had him identify a statement sworn to by him before appraisers who had been selected by the sheriff to appraise and set apart to him such property as was exempt under the law, in which he stated that he had no property at all. Thereupon the plaintiffs rested. The defendants then called R. D. O. Nicholson, the husband, who testified that he married the defendant Nancy on the 29th of July, 1866; that when they were married his wife's father deeded 80 acres of land in Greene county to her (on cross-examination he stated that the deed was made to himself and his wife jointly), and that her father also gave her a mare, 10 hogs, 8 head of sheep, a cow, and a calf; that they afterwards sold the 80 acres of land in Greene county for $800, and, her father having died, she received from his estate $450, and later personal property to the value of $200; that she sold some of the personal property for $40; that with the proceeds of such sale, to wit, $800 for the land, $450 received from her father's estate, the $200 worth of personal property, the sale of the mare for $130, and $500 realized from the sale of a wagon and team of mules, together with what had been earned on the farm, they purchased 120 acres in Lawrence county and 80 acres in Greene county for $2,500 or $2,600, paying thereon $2,000; that there was a vendor's lien on the land for $500 or $600, which was afterwards discovered, in consequence of which the purchase was rescinded, and they received back nearly all the money they had paid therefor; that afterwards, in 1874, they purchased 120 acres, being the west half of the northeast quarter of section 35 and the southwest quarter of the northwest quarter of section 35, in Lawrence county (a part of the land here in controversy), and paid...