Smith v. Thompson

• Decision Date: 14 October 1902
• Citation: 69 S.W. 1040,169 Mo. 553
• Parties: SMITH v. THOMPSON et al.
• Court: Missouri Supreme Court

69 S.W. 1040

169 Mo. 553

SMITH v. THOMPSON et al.

Supreme Court of Missouri, Division No. 1.

October 14, 1902.

HOMESTEAD — ABANDONMENT — PLEADING — BURDEN OF PROOF.

1. The petition in a suit to enjoin a sale under a deed of trust, alleging the obtaining of a judgment against D., an execution sale thereon, at which plaintiff was the purchaser, the filing and overruling of motions of D. to quash the execution and set aside the sale on the ground that the property was the homestead of D., and the giving by D. to defendant of the trust deed on the property after the rendering of the judgment under which the execution sale was made, does not concede the homestead to have existed, so as to require plaintiff

to plead and prove abandonment thereof; but defendant, having pleaded that at the date of the judgment, the deed of trust, and the execution, the property was D.'s homestead, on which issue was joined, has the burden of proof.

2. Though land is one's homestead when judgment is rendered against him, so that no lien then attaches, yet under Rev. St. 1899, § 3750, attaching the lien to lands liable to be sold on execution, it attaches immediately on the homestead being abandoned; section 3714 providing the lien of a judgment shall commence from the date of the judgment, and continue three years, not meaning there shall be no lien if there is no property to which it can attach when the judgment is rendered; it also providing that the lien shall extend as well to after-acquired property as to that owned when the judgment is rendered.

3. Rev. St. 1899, § 3178, providing that no execution prior to levy thereof shall be a lien on personalty or any real estate to which the lien of the judgment does not extend, and that, when execution is levied on such real estate, notice of the levy shall be filed in the county in which it is situated, does not refer to real estate in the county, covered by a homestead which is abandoned after rendition of the judgment.

4. Defendant in execution not being at the time of the sale entitled to a homestead in the property sold, he having abandoned it and moved from the state, the statute making it the duty of the sheriff to notify him of his homestead right has no application.

Appeal from circuit court, Grundy county; A. H. Burkeholder, Special Judge.

Action by H. C. Smith against W. L. Thompson, guardian, and another. Judgment for plaintiff. Defendants appeal. Affirmed.

This is a suit in equity to enjoin the sale of certain land in Grundy county under a deed of trust, upon the ground that the sale would cast a cloud on the plaintiff's title. The statements in the petition are to the effect that in 1895 the circuit court of Grundy county rendered a judgment in favor of the city of Trenton against one F. M. De Vorss for $100, under which judgment execution issued, and all the right, title, and interest of the judgment debtor in the land in question were sold on November 19, 1897, by the sheriff of that county, after due proceedings; that the plaintiff in this suit became the purchaser at such sale, received the sheriff's deed therefor, and immediately took possession of the land, and has ever since retained the same; that prior to the sale the judgment debtor, De Vorss, filed a motion in the circuit court to quash the execution on the ground that the land then about to be sold was his homestead, which motion was duly heard, considered, and overruled, and that after the sale he moved the court to set the sale aside for the same reason, which motion was also duly considered and overruled; that on March 25, 1897, the judgment debtor, with his wife, executed to defendant Thompson, curator of defendant Charles De Vorss, a minor, the deed of trust under which the sale sought to be enjoined is threatened; that the deed of trust covers, also, land in Kearny county, Kan., and provides that, in a sale to foreclose, the trustee must advertise both in Grundy county, Mo., and Kearny county, Kan., whereas in fact he advertised the sale only in Grundy county. The point is also made that the Kansas land, being still the property of the grantor in the deed of trust, should be first exhausted, but the trustee is not proceeding to do so; and it is also averred that the deed was without consideration, and to cover the property from the grantor's creditors; that a sale would cast a cloud on the plaintiff's title, etc. The answer admits the judgment, the execution, the sale thereunder, the purchase by plaintiff, the motion to quash the execution, the motion to set aside the sale, and the rulings of the court on the same, as stated in the petition. It also admits the execution of the deed of trust as pleaded, denying that it was without consideration or that it was fraudulent, and admits that it was about to be foreclosed, as stated in the petition. The answer then sets up affirmatively that at the date of the judgment under which the plaintiff claims, and for many years prior thereto, and continuously on down to the sale by the sheriff, the land in question was the homestead of the judgment debtor, F. M. De Vorss, and not subject to sale under execution, and therefore the deed of trust was valid. It also avers that the sheriff, before making the sale, did not notify the defendant in execution of his rights to a homestead, and did not file in the office of the recorder a notice of such levy, etc., as required by section 4922, Rev. St. 1889 (section 3178, Rev. St. 1899). The reply joined issue on the new matter pleaded. On the trial the plaintiff produced in evidence the judgment of the Grundy circuit court as pleaded, dated August 31, 1895, which was, on appeal to the ...