Shindler v. Givens

• Decision Date: 31 October 1876
• Citation: 63 Mo. 394
• Parties: A. H. SHINDLER, et al., Appellants, v. N. B. GIVENS, et al., Respondents.
• Court: Missouri Supreme Court

63 Mo. 394

A. H. SHINDLER, et al., Appellants,

v.N. B. GIVENS, et al., Respondents.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Lafayette Circuit Court.

Wallace & Childs, for Appellants.

The deed of defendant Givens, for said lots, was not filed for nearly six months, after the rendition of said judgment in favor of plaintiffs, and for that length of time after the lien of said judgment had fastened upon said lots and real estate. Hence, the deed could not prevail as against the execution. (Farra vs. Quigley, 57 Mo. 284; West River Bank vs. Gale, 42 Vt. 27; Wagn. Stat., 698, § 7.)

Vogler vs. Montgomery (54 Mo. 577) does not involve any question concerning the construction of sections seven and eight of the Homestead Law.

Ewing, Smith & Pope, for Respondents.

The levy of the sheriff was properly quashed. “The sheriff could not proceed with the levy on the premises in the actual occupancy of the defendant in the execution ‘as a family residence,’ until he had ascertained in the mode directed by the (homestead) act, the extent and value of the premises. The question of title was not to be investigated by the sheriff.” (Vogler vs. Montgomery, 54 Mo. 577.)

SHERWOOD, Judge, delivered the opinion of the court.

This case comes before us in order that we may determine the propriety of the action of the lower court in quashing, at the instance of the defendant Givens, the levy of an execution on his alleged homestead. With respect to the motion, evidence was heard, whereby it appeared that the premises--two lots with a small house thereon, in the town of Waverly--did not exceed in dimensions or value, the statutory limit; that the defendant, who had a family, had resided on the lots in question, from about the time of his purchase and the receiption of a deed, on the 6th day of January, 1870; that such deed was not filed for record until January 31st, 1874; that the judgment of plaintiff on which the execution issued, was rendered August 7th, 1873, and that notice of defendant's claim of homestead was duly served on the sheriff, prior to the day of sale, but had elicited no response. Two other lots in the same town and also a forty-acre tract were included in the levy.

The action of the court below is attempted to be upheld here, by a decision of this court, in Vogler vs. Montgomery (54 Mo. 577); but it will be found upon examination that section seven of the Homestead Act, whose proper solution must be decisive of this case, was not discussed in the one just cited, and so Judge Napton who delivered the opinion in that, as well as the later one of Farra vs. Quigly, (57 Mo. 284) takes occasion in the one last mentioned to remark. And it will be observed also, in reference to the case of Vogler vs. Montgomery, supra, that the right of Vogler to the Homestead was established beyond question. It remains to be ascertained whether this was as satisfactorily done in the present instance. And if it shall clearly appear that Givens was not entitled as he claimed, the failure of the sheriff to appoint appraisers, etc. etc., could certainly work the claimant no hurt,...