Sperry v. Cook

• Decision Date: 14 June 1909
• Parties: SPERRY v. COOK.
• Court: Missouri Court of Appeals

120 S.W. 654

138 Mo. App. 296

SPERRY v. COOK.

Kansas City Court of Appeals. Missouri.

June 14, 1909.

1. ACTION (§ 1)—"CAUSE OF ACTION"—ACCRUAL.

Strictly "a cause of action" is the wrongful invasion of a private right for which law or equity affords the injured person redress against the wrongdoer; and, whether it be ex contractu or ex delicto, the cause cannot accrue until a wrong has been committed.

2. ACTION (§ 27)—NATURE OF ACTION.

A suit for breach of a marriage contract is an action ex contractu, and not ex delicto,

though it partakes somewhat of the characteristics of the latter action.

3. HOMESTEAD (§ 94)—LIABILITIES ENFORCEABLE AGAINST—"CAUSE OF ACTION."

Rev. St. 1899, § 3622 (Ann. St. 1906, p. 2043), provides that a homestead shall be subject to levy of execution upon all causes of action existing at the time of the acquiring of the homestead, etc., and for this purpose such time shall be the date of the filing of the deed in the proper office for the record of deeds. Held, that the term "causes of action," as relating to causes founded on contract, refers rather to the contractual obligation than to its breach, the test being whether the obligation was contracted before filing of the deed, and where defendant promised to marry plaintiff in June, 1903, fixing February 24, 1904, as the date of the wedding and purchased a farm in October, 1903, filing the deed for record on February 11, 1904, and six days later married another woman and occupied the farm as a homestead, plaintiff's cause of action for breach of promise accrued within the statute in June, 1903, and not at the date of the wedding, and an execution on a judgment obtained by her was leviable on the homestead, even if the occupation as a homestead related back to the filing of the deed.

4. COVENANTS (§ 67)—GENERAL WARRANTY IN DEEDS TO LAND—NATURE.

Covenants of general warranty in a deed to real property run with the land, and, being in rem, differ in the rules by which they are controlled from obligations in personam.

Appeal from Circuit Court, De Kalb County; A. D. Burnes, Judge.

Action by Ruby Sperry against Allie Cook. Judgment for plaintiff, and defendant appealed to the Supreme Court, which transferred the case to the Court of Appeals. 207 Mo. 699, 105 S. W. 1088. Affirmed.

Hewitt & Hewitt, for appellant. Platt Hubbell and George Hubbell, for respondent.

JOHNSON, J.

This is a proceeding to quash the levy of an execution on the ground that the property levied on was the homestead of the judgment debtor. After hearing the evidence, the trial court sustained the motion to quash, but afterward, on the hearing of plaintiff's motion for a new trial, reversed its ruling, and restored the levy. After defendant's motions for a new trial and in arrest of judgment were overruled, an appeal was allowed him to the Supreme Court, but that court, for reasons stated in the opinion filed, held that the cause fell under the jurisdiction of this court on appeal, and, accordingly, transferred it here. Sperry v. Cook, 207 Mo. 699, 105 S. W. 1088. In June, 1903, defendant, whose right name is J. Alden Cook, promised to marry plaintiff, and February 24, 1904, was fixed as the date of the wedding. In October defendant bought a farm of 80 acres in De Kalb county, and filed the deed for record on February 11, 1904. Six days later he married another woman, and in March he and his wife began the occupancy of the farm as their homestead. Plaintiff then sued defendant in the circuit court of De Kalb county to recover damages for breach of promise of marriage, and on May 7th following obtained judgment in the sum of $1,750. She had execution issued on this judgment and levied on the farm, and the sole question for our consideration is whether defendant had acquired a homestead right to the property as against the cause of action on which plaintiff's judgment is founded.

It is provided in section 3622, Rev. St. 1899 (Ann. St. 1906, p. 2043): "Such homestead shall be subject to attachment and levy of execution upon all causes of action existing at the time of the acquiring such homestead except as herein provided; and for this purpose such time shall be the date of the filing in the proper office for the record of deeds, the deed of such homestead," etc. Construing this statute, the Supreme Court said in Cook v. Railroad, 63 Mo. 397: "The evident object of this section, so far as it bears on the subject-matter of the present controversy, was to establish an unalterable criterion to govern in all cases where disputes should arise as to the period when the homestead was acquired. That period as definitely settled by statutory enactment is `the date of the filing in the proper office, etc., the deed of such homestead.'" Invoking this rule, defendant argues that as his homestead right accrued on February 11, 1904, the date he filed his deed for record, and as plaintiff's cause of action did not exist until six days later, when he broke his contract of marriage with her by marrying another person, the property is not subject to levy and sale under the execution. We concede for argument, without so holding, that, by recording his deed with an intention to occupy the farm as a homestead after his marriage, the subsequent occupation by defendant in fulfillment of that intention related the initiation of his right of homestead back to the date of the filing of the deed; but it does not follow from this concession, as defendant appears to think, that the right of homestead antedated plaintiff's cause of action within the meaning of that term as employed in the statute under consideration. Strictly speaking, a cause of action is the wrongful invasion of a private right for which law or equity affords the injured person redress against the wrongdoer; and whether it be ex contractu or ex delicto the cause cannot accrue until a wrong has been committed. In actions on contract the wrong usually consists of the breach of a contractual obligation; in actions ex delicto, of some tort such as trespass or negligence. But, in construing the term "cause of action" as used in the statute before us, the courts of this state, as well as those of other jurisdictions, uniformly hold that, in its relation to causes founded on contract, the term refers rather to the contractual obligation than to its breach, and the test to be applied in all such cases is whether or not the debt or obligation was contracted before the filing of the deed to the property claimed as a homestead, regardless of the question of when the breach of the obligation gave a right of action. Farra v. Quigly, 57 Mo. 284; Stivers v. Horne, 62 Mo. 473; Lincoln v. Rowe, 64 Mo. 138; Berry v. Ewing, 91 Mo. 395, 3 S. W. 877; Titus v. Warren, 67 Vt. 242, 31 Atl. 297; Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529; Ingram v. Wilson, 125 Fed. 913, 60 C. C. A. 618; 15 Am. & Eng. Encyc. of Law (2d Ed.) 634.

A suit for breach of a marriage contract is an action ex contractu, and not ex delicto, "though it partakes somewhat of the characteristics of such action." Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024. It is true the contract contained no promise to pay money, and therefore did not evidence a money debt, but its violation none the less was a breach of a contractual obligation. The presumption must be indulged that defendant, when he entered into the contract, had in mind the damages to plaintiff which naturally would flow from his breach of promise, and impliedly agreed to recompense her. The existence of plaintiff's cause of action must be held to be coexistent with that of the contract of marriage, and the lien of her judgment to be superior to the claim of the homestead. The case of Loring v. Groomer, 142 Mo. 1, 43 S. W. 647, much relied on by defendant, is not in point. Covenants of general warranty in a deed to real property run with the land, and, being in rem, differ in the rules by which they are controlled from obligations in personam.

The judgment is affirmed.

BROADDUS, P. J. concurs.

ELLISON, J. (dissenting).

I think the statute exempts homesteads only for the debts of the homesteader. It is true that section 3622, Rev. St. 1899 (Ann. St. 1906, p. 2043), denies an exemption "upon all causes of action existing at the time of the acquiring such homestead," and that a cause of action is held to mean the inception of the obligation rather than when it falls due, such as the date of a note or making an account. Farra v. Quigly, 57 Mo. 284; Lincoln v. Rowe, 64 Mo. 138; Titus v. Warren, 67 Vt. 242, 31 Atl. 297. And this will apply to a contingent obligation such as that of a surety. Berry v. Ewing, 91 Mo. 395, 3 S. W. 877. But the wording of the statute does not exclude the idea that the cause of action must itself either be a debt or ripen into a debt by judgment. A judgment for money resulting from an action for a tort is a debt, but the tort itself, for instance the utterance of a slander, does not create a debt. That the statute contemplates the existence of a debt, and that it uses the phrase "cause of action" as of the same import as debt, is seen from other sections. Thus sections 3619 and 3623 (pages 2039, and 2045) refer to the "debtor" and "debts"; the latter section using the phrase "cause of action" in the same sense with the word "debtor." That the homesteader must be a "debtor" is made to appear clearly in section 3620 (page 2039), which passes the homestead to the widow and children exempted from "the payment of the debts of the deceased unless legally charged thereon in his lifetime." There can be no doubt but that the homestead which is not exempted—which is made liable in section 3622 "upon all causes of action" existing when the homestead was acquired—is the same homestead which passes to the widow and children upon the homesteader's death freed from his debts "unless legally charged thereon in his lifetime." And there ought not to be any doubt that the mere utterance of a slander, or...