Appeal from Circuit Court, Pike County; D. H. Eby, Judge.
Action by Evelyn L. Sharp against Anna B. Stewart and another, in which plaintiff had judgment and execution sale. Motion by defendants to set aside the sale, and from a judgment sustaining the motion plaintiff appeals. Affirmed.
"This is an appeal from the circuit court of Pike county, wherein the appellant complains of the action of the trial court in sustaining respondents' motion to set aside the sale of real estate made under an alias execution for failure of the sheriff to allow and set aside a homestead to respondents.
"The facts in this case are substantially as follows, to wit: James C. Jamison, deceased, by his last will, which was probated in Pike county, Mo., November 18, 1885, devised to his widow and his two daughters, Anna B. Stewart, respondent herein, and Ada L. White, certain lands in Pike county, Mo., including the lands involved in this case. In 1893 Anna B. Stewart and Anthony W. Stewart, her husband, respondents herein, executed a note to Evelyn L. Sharp for the sum of $500, upon which said note she obtained judgment for the sum of $520 in the circuit court of Pike county on the 3d day of December, 1895. Afterwards, and on the 26th day of October, 1899, and April 13, 1890, said respondents executed two separate deeds of trust upon the lands involved herein to E. W. Major, securing notes to the said Major for the total sum of $900, and being for money loaned to said respondents by him at said times, and which said notes were due and unpaid at the time of the sale of said lands hereinafter mentioned. June 30, 1898, the lands herein mentioned in the will of the said James C. Jamison were partitioned in kind in the circuit court of Pike county, and the lands involved in this case were set off by commissioners to Anna B. Stewart, she taking a life estate in said lands under the terms of said will, the same having been devised to her and her bodily heirs, and the report of the commissioners in said partition proceedings was duly filed in the recorder's office of Pike county, Mo., in 1898. In the spring or summer of 1899 the respondents, together with their minor children, moved upon the lands set apart to Anna B. Stewart, and occupied same continuously as their homestead from that time until the present. On January 26, 1897, Evelyn L. Sharp entered into a contract with one William A. Richards, which contract is set out in the finding of facts by the court, and wherein she agreed to assign said judgment to said Richards upon the payment of certain sums, or to satisfy the judgment record as the said Richards may desire. Afterwards, and in 1899, Evelyn L. Sharp died, and I. C. Dempsey was appointed her administrator, and sued Richards as such administrator, and collected the money from him on said contract. I. C. Dempsey, then, as administrator of the estate of Evelyn L. Sharp, and without any order of the probate court, on the 14th day of November, 1900, assigned the said judgment of Evelyn L. Sharp v. Anna B. Stewart and Others to the said William A. Richards. On the said 14th day of November, 1900, the said Richards caused an alias execution to be issued on the said judgment so assigned by the said I. C. Dempsey, administrator of Evelyn L. Sharp estate, to him, and the lands involved herein were levied upon by the sheriff of Pike county and advertised for sale, and were sold by him, and the lands were purchased at said sale by the said William A. Richards for $210. The lands in controversy were occupied by the respondents as a homestead, and are contiguous tracts. The sheriff, prior to the levy of the alias execution, failed to notify the respondents, or either of them, of such fact, and failed to do so at any other time. Neither Anna B. Stewart nor her husband, Anthony W. Stewart, refused to designate or choose that part of real estate levied upon which they would claim and hold as a homestead, or designate or hold and claim as a homestead. The sheriff did not set apart to respondents or either of them a homestead out of said lands levied upon, nor did he appoint appraisers to fix the location and boundaries of said homestead, nor make any attempt to do so, either prior to said levy or thereafter, or to take into consideration in the matter of said homestead the deeds of trust thereon, and covering said lands, and held by Elliott W. Major. Prior to the time of sale the said Anna B
Stewart served upon the sheriff a notice that she claimed a homestead out of said real estate levied upon, and that she was living in the mansion house of said property, and had been living upon same and using same continuously since the spring of 1899, and asked that her homestead be set apart to her, and also other lands in lieu of the $300 worth of personal property under the statutes, and that appraisers be appointed to locate and set apart homestead, etc. The sheriff failed and refused to set apart the homestead, but proceeded and sold the lands in question under said levy and alias execution, and the same was purchased by the said William A. Richards, to whose use and benefit said alias execution had been issued, and executed to said Richards his deed therefor. Anthony W. Stewart, the husband, had not claimed any homestead or other exemption rights at any time against this execution, or any other execution for the protection of his own property, and had not claimed any homestead or other exemption rights against any execution or attachment since his marriage for the protection of his own property. Anna B. Stewart, in her notice to the said sheriff, made and designated the real estate to be held and used as a homestead, which was the land sold under the alias execution, and which were contiguous tracts and used together, and upon which respondents lived in their mansion house and used as their homestead continuously since the spring of 1899, and being nearly two years prior to said levy and sale. Respondents, after the sale of said lands by the sheriff, and during the same term of court, filed a motion to set aside this sale, and the court, after hearing the evidence, sustained the motion upon the ground that the respondent was entitled to a homestead in the lands so sold, and for failure of sheriff to allow and set aside said homestead."
At the close of the evidence the court, at the request of the plaintiff, made the following finding of the facts, and announced its conclusions of law upon such finding:
"Prior to November 19, 1885, said Jamison died seised in fee of the land in controversy, together with other lands. November 19, 1885, the last will of said Jamison was duly admitted to probate by the probate court of Pike county, Mo. By devise under said will the defendant Annie B. Stewart, who is a daughter of said Jamison, deceased, became invested with the title to an undivided one-half interest in said lands for and during her natural life, subject to the dower interest of the widow in said lands. In 1895 a judgment for $520 was rendered in the circuit court of Pike county, Mo., in favor of Evelyn L. Sharp, and against Anna B. Stewart and her husband, Anthony W. Stewart (the defendants in this action). January 26, 1897, the said Evelyn L. Sharp and William A. Richards (the plaintiff herein) entered into a written contract in words and figures as follows:
"`January 26, 1897
"`In consideration of Mrs. E. L. Sharp withholding ejectment suit for the interest of Mrs. Anna B. Stewart certain lands in Calumet Township in Pike County, Missouri, which I have leased and rented, I hereby agree to pay Mrs. Sharp $100 cash and $200 on or before 15th day of August, 1897, as evidenced by note of this date, and $250 on or before August 15th, 1898, the same to be applied as payment on a judgment in favor of said Mrs. Sharp and against Mrs. Anna B. Stewart and A. W. Stewart in Pike Circuit Court. Provided that if by reason of the death of said Mrs. Stewart I do not have the use of said lands for year 1898 then said $250.00 are not to be paid and said Mrs. Sharp agrees whenever all the above payments have been made to assign said judgment to said Richards undersigned or to satisfy same on the records as may be desired by said Richards.
"`Mrs. E. L. Sharp
"`Per G. W. Emerson, her Atty
"`W. A. Richards.'
"At the time of the death of her father, Mrs. Anna B. Stewart was not residing upon the land in controversy, nor did she reside on the same until the latter part of the year 1898, when she and her said husband, together with their minor children, moved onto said land, and have since then continuously resided on same in the dwelling or mansion house situated on said lands. Prior to the moving of said Stewart upon said land, by decree of partition in kind among the devisees claiming under the will of...
