Simpson v. Scroggins

• Decision Date: 14 June 1904
• Citation: 81 S.W. 1129,182 Mo. 560
• Parties: SIMPSON v. SCROGGINS et al., Appellants
• Court: Missouri Supreme Court

81 S.W. 1129

182 Mo. 560

SIMPSON v. SCROGGINS et al., Appellants

Supreme Court of Missouri, Second Division

June 14, 1904

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Reversed and remanded (with directions).

Ross & Sea for appellants.

(1) As defendant Sarah C. Scroggins was not notified of her homestead right by the sheriff and the same was not set apart to her that she might designate the part to be sold under the Rechow execution, if it was subject thereto, the sale and deed made under said execution was invalid and conveyed no title. Stinson v. Call, 163 Mo. 320; Creech v Childers, 156 Mo. 342. (2) Upon the death of Jesse Scroggins, his homestead in the premises described in plaintiff's petition passed to and vested in his widow Sarah C. Scroggins, and his minor children, without being subject to the debts of the widow, contracted after the acquiring of such homestead while she and her minor children continued to occupy the same as such. Wagner's Stats secs. 5 and 6, p. 698; Gen. Stats. 1865, secs. 5 and 6, p. 450. (3) The homestead was properly set off to defendant Sarah C. Scroggins in the partition proceedings and confirmed by the court to 160 acres of land, valued at $ 1,500, and no part of it should have been taken from her by the partition proceeding and judgment that followed, from which this appeal is taken. Weatherford v. King, 119 Mo. 51. (4) Until the homestead and dower was set out to defendant Sarah C. Scroggins, she was entitled to the possession of the whole of messuage and plantation as her quarantine. Gen. Stats. 1865, sec. 21, p. 522. (5) In assigning the homestead to the widow and minor children, they were not confined to the particular eighty-acre tract on which the house was located where Jesse Scroggins died. Brown v. Brown's Admr., 68 Mo. 388; Perkins v. Quigley, 62 Mo. 498.

C. H. Skinker for respondent.

(1) Exceptions must be preserved by a bill of exceptions filed at the term at which they are taken. R. S. 1899, sec. 728; Smith v. Baer, 166 Mo. 392; Richards v. Ass'n, 156 Mo. 407; Asphalt Paving Co. v. Ullman, 137 Mo. 564; State v. Williams, 147 Mo. 14. "An exception taken at one term, but not preserved, can not be galvanized into life by incorporating it into a bill of exceptions taken at a subsequent term, and so it has been decided." State v. Taylor, 134 Mo. 136; State v. Ware, 69 Mo. 332; Haehl v. Railroad, 119 Mo. 335; Carpenter v. McDavitt, 53 Mo.App. 393; Ins. Co. v. Rosenheim, 56 Mo.App. 27; Davis v. Bond, 84 Mo.App. 504; Smith v. Baer, supra. (2) The law of 1865, under which the widow asks a homestead, contemplates that such right by descent from her deceased husband shall pass his homestead, "consisting of the dwelling house and appurtenances and land used in connection therewith," which under the evidence in this case, would include the eighty acres of land in section 10 and eighty acres more adjoining in section 15, township 32, range 23. The law does not provide for a widow selecting as her homestead other lands than that occupied and used as such by the deceased head of the family at the time of his death. And the homestead rights of Sarah C. Scroggins, if any, were not invaded by the sheriff's sale of the south one hundred acres of said section 15, which was set off to the plaintiff, James G. Simpson, under the decree of partition. But if said widow's rights did, under any view of the case, extend to said last-mentioned partition of lands, then the same being acquired by descent or devise, and there being no deed of record to fix the time of acquisition, there was no exemption of such homestead as against her own creditors. Loring v. Groomer, 142 Mo. 12; Keyte v. Peery, 25 Mo.App. 400; Griswold v. Johnson, 22 Mo.App. 466; Shindler v. Givins, 63 Mo. 394; Tennet v. Pruitt, 94 Mo. 145.

OPINION

FOX, J.

This appeal comes here from a judgment rendered in partition of certain lands claimed by parties plaintiff and defendant.

The petition in this cause is as follows, to-wit:

"Now comes the plaintiff, James G. Simpson, and for amended petition, states that Jesse Scroggins died in Polk county, Missouri, testate, on or about July --, 1872, seized and possessed in fee of the following described land, to-wit: The northeast quarter of section 15, and seventeen acres on the north side of Slagle creek in the northwest quarter of southeast quarter, and three acres and eighty perches in the southeast corner of the southeast quarter of northwest quarter in section 15, all in township 32, range 23, Polk county, Missouri.

"That said Jesse Scroggins, deceased, left surviving him as his only heirs, a widow, Sarah C. Scroggins, and ten children, viz., Granville, Houston L., B. Wils, Peter, Wesley, and Matilda Scroggins, and Clementine Hensley, Martha E. Hensley, Mary J. Gowtey, and Margaret C. Wiley, all of lawful age, but Matilda Scroggins, a defendant herein, is now of unsound mind and incapable of attending to ordinary business.

"That nine of said children and heirs have by general warranty deeds conveyed all their undivided interests in said 180 acres of land, and the plaintiff, James G. Simpson, is the present owner in fee, by purchase, of such nine-tenths interest therein, subject in part to the life estate of said widow, a defendant herein.

"That the defendant, Matilda Scroggins, one of said heirs, still owns a one-tenth interest in said 180 acres of land in section 15, township 32, range 23, subject to the life interest of said widow, Sarah C. Scroggins.

"That said Jesse Scroggins at the time of his death also owned and occupied as his family homestead the southeast quarter of southwest quarter and the southwest quarter of southeast quarter of section 10, township 32, range 23, adjoining the north half of said northeast quarter of section 15, township 32, range 23, Polk county, Missouri.

"That for over twenty years after the death of said Jesse Scroggins, his said widow, Sarah C. Scroggins, continued to reside upon and make her home in the dwelling house on or about the center of said eighty acres of land in said section 10, until some three years ago, when she moved upon said northeast quarter of said land in section 15, where she now resides, claiming a life estate therein under the will of her said deceased husband.

"Plaintiff further states that the interest of said Sarah C. Scroggins has been sold under a legal and valid judgment against her, and the plaintiff, by purchase, is now the legal owner of such interest in the south 100 acres of said land in section 15, township 32, range 23. That said Jesse Scroggins by his last will and testament devised to Sarah C. Scroggins, his widow, all his personal and real estate "during her natural life or widowhood." That said will was filed and proven in the probate court of Polk county, Missouri, and letters testamentary issued upon the same to one Morris Mitchell, the executor therein named. That said Sarah C. Scroggins accepted the provisions of said will, took possession of all the real estate of which said Jesse Scroggins died seized, consisting of the 260 acres hereinbefore described and other lands, and used and collected rents from the same for many years.

"That the personal estate of said Jesse Scroggins, amounting to something over $ 800 in value, was turned over to the defendant, Sarah C. Scroggins, by order of the probate court of Polk county, Missouri, under such will, and accepted by her in lieu of personal dower and homestead in her said husband's estate.

"That the defendant, Sarah C. Scroggins, is now entitled to a life estate in the north half of northeast quarter of said section 15, township 32, range 23. That the defendant, Matilda Scroggins, is entitled to one-tenth interest in said 180 acres of land in said section 15, subject only to the life estate of said Sarah C. Scroggins in the north eighty acres thereof. That the plaintiff is entitled to a nine-tenths interest in the said 180 acres in said section 15, subject to the life interest of said widow in the said north half of the northeast quarter of said section 15, township 32, range 23.

"Wherefore, plaintiff asks that a guardian ad litem be appointed for the defendant, Matilda Scroggins, and that partition in kind be made of said 180 acres of land in section 15, township 32, range 23, between the parties herein, according to their respective rights and interests, and for such other legal and equitable relief as to the court may seem meet and proper."

Defendants filed separate answers, which for the purpose of disposing of this case need not be reproduced. At the August term, 1901, this cause coming on to be heard, the court made the following order:

"Now at this day this cause coming on to be heard, all parties appear in person and by counsel and at the close of the testimony, the court being of the opinion and finding that Sarah C. Scroggins, as the widow of Jesse Scroggins deceased, is entitled to homestead in the lands of which said Jesse Scroggins died seized, which includes the land described in plaintiff's petition, to-wit: the northeast quarter of section 15, and seventeen acres on the north side of Slagle creek in the northwest quarter of the southeast quarter of section 15 and three and 80-100 acres in the southeast corner of southeast quarter of the northwest quarter of section 15, all in township 32, range 23, and also includes the southwest quarter of the southeast quarter, and the southeast quarter of the southwest quarter of section 10, township 32, range 23, in Polk county, Missouri, and not included in plaintiff's petition.

"It is therefore ordered by the court that G. M. Botts, J. J Akard and W. F. Burns be and are hereby appointed commissioners to set out to said Sarah C. Scroggins, as widow of Jesse...