Ridenour-Baker Grocery Company v. Monroe
| Decision Date | 22 December 1897 |
| Citation | 43 S.W. 633,142 Mo. 165 |
| Parties | Ridenour-Baker Grocery Company, Appellant, v. Monroe |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. -- Hon. J. C. Lamson, Judge.
Reversed (with directions).
Lyman W. White for appellant.
(1) Thompson on Hom. and Exemp., sec. 100. (2) A family "is a collection of persons who live in one house and under one head or manager." Thompson on Hom. and Exemp., sec. 60. (3) In legal contemplation two elements are essential to constitute a family headship. If other than the husband or father, he must not only be under a moral duty to support and does support those living with him, but he must also manage, supervise and control the affairs of the household. Wade v. Jones, 20 Mo. 77; The State to use v. Kane, 42 Mo.App. 253; Thompson on Hom. and Exemp., sec. 45; Whalen v. Cadman, 11 Iowa 226; Waples on Hom. and Exemp., pp. 95, 96; Beckman v Myer, 75 Mo. 333. (4) The court erred in refusing to permit the plaintiff's counsel to ask the witness, Dicey P. Monroe, who managed, supervised and controlled the Monroe family. Wade v. Jones, supra; The State to use v. Kane supra.
Brunk & Dabbs and Pratt & Phipps for respondent.
(1) The homestead, not being subject to the rights of creditors, its conveyance can not be fraudulent as to them. Davis v Land, 88 Mo. 439; Burns v. Baugnet, 92 Mo. 167; Kendall v. Powers, 96 Mo. 142; Grimes v. Fortman et al., 99 Mo. 229; Hart v. Leete, 104 Mo. 316; McKee v. Boyd, 131 Mo. 682. (2) Parties who are under moral obligations to support parties living with them are heads of families. Wade v. Jones, 20 Mo. 75; State ex rel. v. Kane, 42 Mo.App. 253; Thompson on Hom. and Exemp., secs. 49, 50, 59, 66. (3) It is not necessary that homestead be owned by the head of the family. It may be owned by one of the other members of the family. Waples on Hom. and Exemp., p. 64, sec. 4; Bank v. Senn, 25 S.C. 572; Morton v. Bertham, 21 S.C. 381; Brockman v. Crawford, 3 Humph. 213; Cunningham v. Sands, 32 Wis. 391; Parsons v. Livingston, 11 Iowa 226; Kendall v. Powers, 96 Mo. 142. (4) Homesteads may be claimed in joint estates or held by tenants in common. Thompson on Hom. and Exemp., secs. 180, 182, 252; Freeman on Cotenancy, sec. 54. (5) The appellant complains that the court below erred in excluding evidence offered by the plaintiff as to who managed, supervised and controlled the Monroe family. This evidence was clearly incompetent, and if admitted could not have changed the result of the trial. Wilkerson v. Allen, 67 Mo 502; Wilson v. Board of Execution, 63 Mo. 137; Bischoff v. Stumpf, 10 Mo.App. 474. (6) The Supreme Court and the courts of appeals have refused to reverse, notwithstanding intervening errors, on the ground that the judgment was for the right party. Take v. Bancroft, 1 Mo. 163; Swearingen v. Orine, 8 Mo. 707; Garesche v. Deane, 40 Mo. 168; Hedecker v. Ganzorn, 50 Mo. 154; Dunbar v. Weightman, 51 Mo. 432; Sebree v. Patterson, 92 Mo. 451; Deal v. Cooper, 94 Mo. 62; Ghio v. Beard, 11 Mo.App. 21; Brown v. Railroad, 20 Mo.App. 427; Brooking v. Shinn, 25 Mo.App. 277; Hunter v. McKeon, 25 Mo.App. 660.
This is an appeal from a final decree of the circuit court of Newton county dismissing a bill in equity by plaintiff to set aside a certain conveyance of real estate in Neosho as fraudulent and to subject the same to a judgment in favor of plaintiff against Lula E. Monroe, the daughter of defendant. It is an equitable suit in aid of an attachment and based upon section 571, Revised Statutes 1889. The plaintiff was and is a creditor of the firm of Bryan & Monroe, composed of J. L. Bryan and Miss Lula E. Monroe, doing a mercantile business at Neosho from about the first of October, 1893, until about the twelfth of March, 1894, when the establishment was foreclosed by attachment suits in favor of the bank of Neosho and the plaintiff and other creditors.
Plaintiff's attachment suit was commenced on March 15, 1894, and in due time judgment was obtained by plaintiff against the firm of Bryan & Monroe for the sum of $ 260. On the seventh day of March, 1894, Miss Lula E. Monroe, by warranty deed, conveyed her undivided one half of the lot in suit to her mother, Mrs. Dicey Monroe, for the nominal sum of $ 270. At the time said deed was executed Miss Lula Monroe and said firm of Bryan & Monroe were insolvent. On the thirteenth day of March, 1894, the sheriff of Newton county attached and levied upon all the right, title and interest of said Lula Monroe in and to the lot in suit.
The evidence discloses that one Easterday, by deed dated May 25, 1891, and recorded March 16, 1892, conveyed the real estate in suit to Henry and Lula Monroe for the consideration of $ 145. The lot in dispute is situated in Neosho, Newton county, and contains something less than three acres, being two hundred feet by six hundred feet, and a dwelling house of seven rooms is situated on it. It is variously estimated at from $ 1,000 to $ 2,000.
Plaintiff charges the deed from Lula Monroe to her mother was fraudulent and without consideration and that the defendant combined and conspired with her daughter to cheat, defraud, hinder and delay the creditors of Bryan & Monroe, and prays that it may be set aside and said lot subjected to its judgment and for proper relief. Defendant, in her amended answer, avers that she paid value for said lot, and secondly, it was and is a homestead and not subject to sale under execution or attachment.
The circuit court found for defendant and plaintiff appeals.
I. This record leaves no doubt in our minds that the deed from Lula Monroe to her mother, Mrs. Dicey Monroe, was utterly without consideration. The evidence of the mother and daughter establish this fact. Miss Monroe testified that the consideration for the deed was a promise by her mother of $ 500 if the mother ever sold the place, $ 1 in cash and her mother's undivided interest in Tennessee land. That she had never received any conveyance of the Tennessee land and she knew absolutely nothing of its location, value or amount. The mother testified that she promised the daughter $ 250 if she ever sold the lot in dispute and her undivided interest in her Tennessee land, but she had no intention whatever of ever selling the Neosho lot. That she had never made her a deed to the Tennessee land. It appears from Henry Monroe's evidence that his mother was one of eleven heirs in the Tennessee tract, but he did not know what county it was in. He further testified that his mother had no means and was dependent upon himself and sister for support. That his father had no property of any kind and his only income was a pension of $ 12 a month.
That Mrs. Monroe paid nothing for the lot in suit, is too plain for discussion. A debtor hopelessly insolvent and conveying all of her visible property to a relative ought to be able to show something more tangible than the verbal promise of an insolvent person to pay something upon a condition which she announces she has no idea will ever happen, and an equally vague verbal agreement to convey real estate in a different State, of the value of which the vendee is totally ignorant. Arrangements of this kind between near relatives upon the very eve of insolvency call for the closest scrutiny by courts of equity and we have no hesitancy in declaring this one a transparent fraud and void as against the plaintiff who was a creditor at the time it was conceived and attempted. Indeed, counsel for the mother virtually concedes the fraud, but argues that as it was a homestead its conveyance could not be fraudulent.
II. The principal, and we may say the only, defense to this action is that the interest of Miss Lula Monroe was a homestead acquired by her prior to her becoming indebted to plaintiff and therefore not subject to attachment or sale for her debts. Such was the finding of the circuit court and such is now the contention of defendant. Section 5435, Revised Statutes 1889, provides that the homestead of every housekeeper or head of a family consisting of a dwelling house and appurtenances and land used in connection therewith which is or shall be used as a homestead by such housekeeper or head of a...
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