Schaeffer v. Beldsmeier

• Decision Date: 18 January 1881
• Citation: 9 Mo.App. 438
• Parties: AUGUST SCHAEFFER, Respondent, v. JOBST H. BELDSMEIER, Appellant.
• Court: Missouri Court of Appeals

9 Mo.App. 438

AUGUST SCHAEFFER, Respondent,

v.JOBST H. BELDSMEIER, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 18, 1881.

1. The report of appraisers, made in a proceeding under the statute to subject the residue of real estate claimed as a homestead to the satisfaction of an execution, is not conclusive as to the value of the realty, but may be set aside in a direct proceeding for that purpose.

2. In such a proceeding an offer of the creditor to pay the debtor a certain sum for his homestead right, and to credit him on the execution with another sum, provided the debtor would convey the premises to the creditor, is not evidence that the property was worth the aggregate of both sums.

3. To prevent a sale of the homestead, a severance may be effected by setting out the homestead, subject to a perpetual easement of way over it, where this can be done without greatly depreciating the value of the premises or greatly inconveniencing the parties.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and decree entered.

KEHR & TITTMANN, for the appellant: The proceedings resulting in the allotment of the homesteads are conclusive, no objection or exception thereto having been taken at the return term of the execution.-- Barney v. Leeds, 54 N. H. 142; Thompson on Home. & Ex., sect. 667; Spoon v. Reid, 78 N. C. 245.

FINKELNBURG & RASSIEUR, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is a proceeding under sect. 10 of the Homestead Act (Rev. Stats., sect. 2698), to subject the residue of certain real estate in the city of St. Louis, in excess of the homestead of the defendant, to the satisfaction of a judgment for $3,535.20, obtained by the plaintiff against him in the St. Louis Circuit Court. The premises in question consist of a lot of ground having a front of thirty-five feet on Cass Avenue in St. Louis, and extending back between parallel lines, one hundred and thirty-three feet and nine inches to an alley. On the front portion of the lot, and fronting on Cass Avenue, there is a building of eight rooms, occupied by the defendant as his homestead, and by his tenants. On the rear portion there is a similiar building fronting on the alley. The plaintiff sued out execution on his judgment, and directed the sheriff to levy it on the entire premises. This the sheriff did, and thereafter advertised the entire premises for sale. The defendant having in the meantime claimed the premises as his homestead, the sheriff summoned three appraisers, who proceeded, in conformity with another section of the statute (Rev. Stats., sect. 2690), to fix the location and boundaries of the defendant's homestead. This they did by setting off to the defendant that portion of the lot fronting on Cass Avenue to a depth of eighty-three feet, leaving as the portion which the sheriff might sell under the execution, that portion which fronts on the alley with a depth of fifty feet, nine inches. The circumstances of “great inconvenience” and “great depreciation in value,” which are supposed to make this a case for relief under sect. 10 of the Homestead Act, consist in the fact that, in addition to the alley on which the building on the rear lot fronts, that portion of the premises is approached by a paved private way, three feet wide, extending from Cass Avenue along and over the east side of the front portion of the lot to the building on the rear lot, which foot-way would, it is supposed, be cut off from the tenants of the rear lot by the partition determined upon by the appraisers.

The plaintiff, having learned the decision of the appraisers, directed the sheriff not to proceed with the sale, but to return the execution into court, with his doings thereon, which he accordingly did; and the plaintiff thereupon filed a motion in the cause, praying for the relief which he now seeks in the present proceeding; but the court, being of opinion that such relief must be sought for in a separate proceeding, overruled the motion. The plaintiff then filed the present petition, setting forth, in substance, the foregoing facts, and averring that the severance of the lot, as determined upon by the appraisers, would greatly depreciate the value of the residue of said premises (meaning the rear portion), and be of great inconvenience to the plaintiff, or parties interested in the residue, as well as in the homestead; and praying for the relief granted by the statute.

The section of the statute referred to reads as follows: “Whenever any dwelling-house, out-building, and the land in connection therewith in which a homestead right shall exist, shall exceed the respective value mentioned in sect. 2689, and a severance of such homestead would greatly depreciate the value of the residue of the premises, or be of great inconvenience to the parties interested either in such residue or in such homestead, either party may apply to the Circuit Court, by petition, setting forth the facts for relief; and upon the hearing of such petition, if it shall appear that such homestead cannot be occupied in severalty without great inconvenience to the parties interested in such homestead or in such residue, the court may order such homestead to be transferred to such other parties, and the payment of the value of the homestead interest to the owner thereof; or, at the option of such owner, may order such other parties to transfer such residue to him, and order him thereupon to pay such other parties the value thereof, to be fixed by the court; or, if the case require it, the court may order a sale of the whole premises, and apportion the proceeds between the parties. And such court may make all such orders in the premises as shall be equitable and needful.” Rev. Stats., sect. 2698.

The case was tried in the court below without a jury. Evidence was adduced on the part of the plaintiff to show that a severance of the property according to the decision of the appraisers would diminish the value of that part fronting on the alley, by reason of cutting off the private-way; and counter evidence was presented by the defendant. Testimony was also offered on both sides as to the value of the premises unsevered, and the value of the respective portions if severed...