Shipman v. Fitzpatrick

• Decision Date: 06 October 1942
• Docket Number: No. 38176.,38176.
• Citation: 164 S.W.2d 912
• Parties: J.M. SHIPMAN, GEORGIA SHIPMAN, GORDON J. MASSEY and HARRIET MASSEY, Appellants, v. S.S. FITZPATRICK and JESSIE FITZPATRICK.
• Court: Missouri Supreme Court

164 S.W.2d 912

J.M. SHIPMAN, GEORGIA SHIPMAN, GORDON J. MASSEY and HARRIET MASSEY, Appellants, v. S.S. FITZPATRICK and JESSIE FITZPATRICK.

No. 38176.

Supreme Court of Missouri.

Division One, October 6, 1942.

Appeal from Christian Circuit Court. — Hon. Tom R. Moore, Judge.

REVERSED AND REMANDED (with directions).

Gordon J. Massey for appellants.

(1) Where an execution was levied on land prior to adjudication that the debtor was a bankrupt, a sale under the execution after such adjudication was valid. Fisher v. Lewis, 69 Mo. 629; McGready v. Harris, 54 Mo. 137. (2) Proceedings in bankruptcy do not divest a state court of previously acquired jurisdiction of a suit to foreclose a mechanics lien. Seibel v. Simeon, 62 Mo. 255. (3) The State courts have jurisdiction to enforce a chattel mortgage given prior to bankruptcy on property set apart to the mortgagor as exempt under the state law. And a judgment on exempt property of bankrupt or property not subject to be inventoried is not killed or lost. Bank of Mendon v. Mell, 172 S.W. 484; C., B. & Q.R. Co. v. Hall, 229 U.S. 511. (4) A judgment against one that is a tenant in common with the bankrupt of property claimed by the bankrupt is not avoided by the adjudication of bankruptcy. In re English, 127 Fed. 940. (5) Tenancy by the entirety is not affected by the bankruptcy of either tenant. Wharton v. Citizens Bank, 15 S.W. (2d) 271; Ryan v. Browne, 17 S.W. (2d) 271; Dickey v. Thompson, 18 S.W. (2d) 388. (6) As to execution sale, debts contracted before the date of recording of deed or patent, or commissioner's report, or death of ancestor, under which possession is taken, are superior to homestead, and a sale for such debts by execution eliminates homestead. R.S. 1939, sec. 615; Gill on Missouri Titles, sec. 1066; Tennant v. Pruitt, 94 Mo. 144; Payne v. Fraley, 165 Mo. 191; Acreback v. Myer, 165 Mo. 685; Barton v. Walker, 165 Mo. 25; Clark v. Thias, 173 Mo. 628; Poplar Bluff Trust Co. v. Bates, 31 S.W. (2d) 93. (7) When the sum demanded exclusive of interest and costs does not exceed $250 then justice has jurisdiction. R.S. 1939, sec. 2552; Sutton v. Cole, 73 Mo. App. 518.

O. Purd Hays for respondents.

(1) The note shows that the amount of the principal of the note is far more than $250 as the note was 7 years old, and the interest each year was to be added to the principal, and bear the same rate of interest — a new principal each year augmented by the interest each year — and the new principal bearing interest at 8% the same as the original principal. There are no credits, no reductions to bring the note within the jurisdiction of the justice made by plaintiffs at any time before the justice rendered judgment and the court. The justice of the peace could not make or change the amount due on the note, and the justice did not make any credits or deductions from the amount of the note but rendered judgment for what he believed was due on the note — that judgment was for $386.78 — and is null and void for want of jurisdiction of the said justice to render. And the trial court should have sustained the motion to dismiss and abated said cause of action. Trap v. Mersman, 183 Mo. App. 512; State ex rel. v. Porterfield, 283 S.W. 459; James v. Hiatt, 80 Mo. App. 43. (2) Jurisdiction is not waived can be raised at any time in any and all courts. Western Oil & Gas Co. v. O'Dell, 115 S.W. (2d) 134. (3) That the justice court had no jurisdiction and this being a transcript judgment and an execution being based upon a transcript judgment and the levy and sale under an execution as admitted in this cause and the sale under said execution being void for want of jurisdiction and a deed being executed to the buyer of the land based on said judgment of the justice court for more than $250, to-wit: for $386.78, the deed is void and conveyed no title.

DOUGLAS, P.J.

This is a suit to quiet title to land in Christian County and for ejectment.

Defendants, husband and wife, borrowed some money in 1932 for which they gave their joint note due six months after date. They acquired the land in suit in 1935, taking it as tenants by the entirety. In 1940 suit was brought upon the note by the plaintiffs in this case who had acquired the note. Judgment was obtained against both defendants on February 21, 1941. Execution was issued on this judgment and the land in question was sold under the execution to the plaintiffs on September 1, 1941. On September 11, 1941, before the deed under the execution sale was delivered to plaintiffs, both defendants were adjudicated bankrupts. The husband, in his bankruptcy proceeding, claimed the land here involved to be exempt as a homestead. The referee in bankruptcy set it aside as exempt. Thereafter this suit was filed.

Plaintiffs claim title under the sheriff's deed on execution. Defendants claim that the sheriff's deed is void because the land is a homestead and not subject to execution. They support their claim by the finding in the bankruptcy proceeding that the land was a homestead. The court below entered judgment for defendants. It held the judgment in the bankruptcy proceeding that the property was exempt as a homestead was res judicata and was binding upon it. Plaintiffs have appealed.

[1] It is settled by statute that a homestead is not exempt from execution on causes of action which have accrued prior to the time the homestead is acquired. Sec. 615, R.S. 1939. The fact the note was due prior to the time of the acquisition and occupancy of the land as a homestead defeats the defendants' claim of exemption as to this debt. Crary v. Standard Investment Co., 313 Mo. 448, 285 S.W. 459; Poplar Bluff Trust Co. v. Bates, 224 Mo. App. 636, 31 S.W. (2d) 93. The judgment on this debt was a lien against the land.

[2] The finding in the bankruptcy proceeding that this land was exempt as a homestead did not affect the plaintiffs' judgment lien on the land nor their claim under the execution sale. The effect of the finding was merely to hold the land free from liability for claims filed against the bankrupt's estate. Setting aside the land as exempt restored it to defendants but still subject to plaintiffs' lien and claim which were against the land before the bankruptcy court took possession of it. See Bank of Mendon v. Mell, 184 Mo. App. 510, 172 S.W. 484. The judgment of the trial court that such finding in the...