Sperry v. Cook

• Decision Date: 24 December 1912
• Citation: 152 S.W. 318,247 Mo. 132
• Parties: RUBY SPERRY v. ALLIE COOK, Appellant
• Court: Missouri Supreme Court

152 S.W. 318

247 Mo. 132

RUBY SPERRY v. ALLIE COOK, Appellant

Supreme Court of Missouri, First Division

December 24, 1912

Appeal from DeKalb Circuit Court. -- Hon. A. D. Burnes, Judge.

Reversed and remanded.

Hewitt & Hewitt for appellant.

(1) The debtor acquired the homestead on the 11th of February, 1904 that being the day on which the deed to the same was filed for record in the office of the recorder of deeds for DeKalb county. R.S. 1899, Sec. 3622; Shindler v. Givens, 63 Mo. 396; Bank v. Gale, 42 Vt. 27; Lamb v Mason, 45 Vt. 500; Finnegan v. Prindeville, 83 Mo. 517; O'Shea v. Payne, 81 Mo. 519; Payne v. Fraley, 165 Mo. 196. (2) The primary rule of statutory construction of homestead laws is that the intention of the Legislature governs. And the courts in view of the benevolent purpose of these statutes have almost universally held that they are to be liberally construed. 12 Am. & Eng. Ency. Law (2 Ed.), p. 533, note 5, and p. 535. (3) The primary right arising under the promise to the respondent was to have the promise fulfilled on the 24th day of February, 1904, and it was the corresponding duty of the appellant to fulfill his promise; the delict or wrong done by the defendant consisted in the breach of this right or duty. It was these elements that constituted respondent's cause of action. To state briefly, the cause of action consisted of the right belonging to respondent and the breach committed by appellant. Pomeroy's Remedies, sec. 452; Noonan v Pardee, 200 Pa. St. 474, 55 L.R.A. 474; Tube Co. v. Burgess Co., 40 N.Y.S. 871; Post v. Campau, 42 Mich. 90; Fields v. Daisy G. M. Co., 26 Utah 373; Matz v. Railroad, 85 F. 180; Cause of Action, Bouvier's Law Dict.; 2 Words & Phrases, p. 1015; Trammell v. Vaughn, 158 Mo. 226; Wanneck v. Kratke, 66 L.R.A. 801, note 5. (4) The verbal noun "existing," as used in the statute, Sec. 3622, R.S. 1899, in connection with "cause of action," defined by Webster as being a fact, an entity, the state of being. Note the language of Sec. 3622, R.S. 1899, is "upon all causes of action existing." Plaintiff's cause of action did not come into existence, or being, till the breach of her right to have the contract fulfilled. (5) Respondent did not become a creditor of defendant until the breach of the contract February 17, 1904, viz., the date of the marriage. 14 Am. & Eng. Ency. Law (2 Ed), 253; Loring v. Groomer, 142 Mo. 9.

Platt Hubbell and George Hubbell for respondent.

(1) This is an action for breach of a contract. This is an action ex contractu -- not an action ex delicto. Broyhill v. Norton, 175 Mo. 203. "The date of the execution of the contract and not that of the breach of it, governs in respect to the priority of the creditor's claim over that of the homestead." 15 Am. & Eng. Ency. Law, 634; Berry v. Ewing, 91 Mo. 395; Travis v. Davis, 15 S.W. 525; Stivers v. Horn, 62 Mo. 476; Lincoln v. Rome, 64 Mo. 138. Plaintiff's cause of action grew out of a breach of a promise to marry, made in June, 1903. The defendant's liability was created when he entered into that contract. The cause of action accrued then, though the right of action did not come into existence till the breach of that promise. The distinction between the terms cause of action and right of action should not be overlooked. Titus v. Warren, 67 Vt. 242; Ellinger v. Thomas, 64 Kan. 180; Ingram v. Wilson, 125 F. 913. The case of Loring v. Groomer, 142 Mo. 1, is not in point because there was no personal contract in that case -- no obligation in personam -- there was an obligation in rem, a covenant of general warranty "which runs with the land." (2) Ownership, filing of deed for record, occupancy of the land, and the marriage of the defendant must all exist at the same time, before the right to homestead exemption could come into existence. Barton v. Walker, 165 Mo. 25; Rose v. Caton, 168 Mo. 296; Holland v. Rongey, 168 Mo. 16; Burton v. Look, 162 Mo. 512.

OPINION

BROWN, C. --

This cause was certified to this court upon a division of opinion in the Kansas City Court of Appeals, the majority of that court being in favor of the affirmance of the judgment below, Ellison, J., dissenting. It is a proceeding in the DeKalb county Circuit Court to quash the levy of an execution on land in that county on the ground that the property levied on was the homestead of Cook, the judgment debtor. The majority opinion of the Court of Appeals (Sperry v. Cook, 138 Mo.App. 296, 297) contains a succinct statement which clearly presents the single issue as follows:

"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 eighty acres in DeKalb 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 DeKalb county to recover damages for breach of promise of marriage and on May 7 following, obtained judgment in the sum of $ 1750. 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."

Sec. 6711, R.S. 1909, provides: "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 otherwise provided; and for this purpose such time shall be the date of the filing in the proper office for the records of deeds, the deed of such homestead, when the party holds title under a deed, but when he holds title by descent or devise, from the time he becomes invested with the title thereto; and in case of existing estates, such homestead shall not be subject to attachment or levy of execution upon any liability hereafter created." The question involves the construction of this provision to ascertain (1) when the homestead of the appellant was acquired, and (2) when the cause of action represented by the judgment under which the respondent seeks to sell it began to exist.

I. As was said for this court by Fox, J., in Sharp v. Stewart, 185 Mo. 518, 529, 84 S.W. 963, the subject of homestead is one in which the courts have manifested a very deep consideration, and "in view of the benevolent purposes sought to be accomplished by them, it has been nearly the universal ruling of the courts that such statutes should be liberally construed." It also assists us if we bear in mind that these statutes are not in derogation of the common law. The execution statutes authorizing the sale of these lands are in derogation of the common law, and the homestead statutes are simply restrictive of the innovation (Wharton on Real Property [6 Ed.], 309); for, "by the common law a man could only have satisfaction of the goods, chattels, and the present profits of lands, . . . but not the possession of the lands themselves." [3 Blackstone's Commentaries, 418.] So there is nothing which requires or even justifies us in extending the operation of these restrictive provisions beyond the scope of a reasonable interpretation of the words in which they are expressed, whatever may be our own idea of the duty which rested upon the Legislature.

Section 6704 exempts the homestead of every housekeeper or head of a family, consisting of a dwelling house and appurtenances and the land used in connection therewith, to the amount and value named, which is or shall be used by such housekeeper or head of a family as such homestead, from attachment and execution, except as provided in the act. There is nothing uncertain about this. Leaving, for the moment the exceptions out of our consideration, it refers only to the time the property is sought to be taken in execution; so that if it should be thus occupied at the time, it would come within the terms of the exemption, unless there might be some constitutional question raised as to its application to contractual obligations assumed before the enactment of the law. We must, then, look for any modification of this absolute exemption from the operation of the writs named, in some other portion of the act.

In this inquiry the history of the law is helpful. The first homestead act (Laws 1863, p. 21) provided for the exemption "from sale under execution (or other process) when owned by the head of a family, or wife, who shall be a bona fide resident of the State, any of his or her real estate, not exceeding (one hundred and sixty acres, if farming land, or one lot in town or city) in value one thousand dollars, at the date of such exemption, to be held and enjoyed by such party as a homestead." It would seem that this section was framed, with studied care, to avoid the construction that the land must, at the time the exemption should be claimed, be occupied as a homestead by the party, provided such party should then reside in the State. There were excepted from its operation (Sec. 13) taxes, and "any debt or liability contracted for on account of the purchase of said homestead, or improvements made upon the same;" and (Sec. 10) "any debts or liabilities contracted before the taking effect of this act." This was superseded by the law enacted in the General Statutes (1865), all the provisions of which affecting this controversy, have been continued ever since. It changed the original act by requiring that the property exempted shall be used as a homestead. It also includes all the exceptions to the operation of the exemption which it creates, in a single section (Sec. 7) which is the same as Sec. 6711, R.S. 1909, omitting only the words "but...