Sperry v. Cook
| Decision Date | 14 June 1909 |
| Parties | RUBY SPERRY, Respondent, v. ALLIE COOK, Appellant |
| Court | Kansas Court of Appeals |
Appeal from DeKalb Circuit Court.--A. D. Burnes, Judge.
Judgment affirmed.
Hewitt & Hewitt for appellant.
Hubbell & Hubbell for respondent.
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 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 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, Revised Statutes 1899: "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.
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.
To 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.
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 co-existent 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, such relied on by defendant, is not in point. Covenants of general waranty 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., dissents, and cause certified to the Supreme Court.
--
I think the statute exempts homesteads only for the debts of the homesteader. It is true that section 3622, Revised Statutes 1899, 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. Quigley, 57 Mo. 284; Lincoln v. Rowe, 64 Mo. 138; Titus v. Warren, 67 Vt. 242, 31 A. 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 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, 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 commission of other tort, not convertible into an implied contract to pay for property loss, is not legally charging a debt against the homestead. No homestead which would pass to the widow and children free of debts if the homesteader should die, would be liable to attachment or execution under section 3622.
It is true, as just intimated, that there are torts which may be waived and actions ex contractu, on an implied contract, may be sustained, as, for instance, the wrongful conversion of property. In such an action a homestead acquired after committing the tort and before judgment, would be liable. In such case there is an injury to property rights and an implied promise to pay and the relation of debtor is created by that means.
But since an action for breach of promise of marriage is regarded as founded on contract, it may be suggested that the foregoing observations are not applicable. I have made them to show that a debt must exist against the homesteader prior to the acquisition of his homestead in order to subject it to execution. It makes easier the solution of the question whether a promise of marriage creates a debt before judgment. While it is true that an action for a breach of promise of marriage is regarded as being founded on contract and not on tort, yet "it partakes somewhat of the characteristics of such an action," of tort. [Broyhill v Norton, 175 Mo. 190, 203, 74 S.W. 1024.] In most respects it does not partake of the nature of an action on a contract. It is sui generis. It does not survive the promisor. [Wade v. Kalbfleisch, 58 N.Y. 282; Price v. Price, 75 N.Y. 244; Grubb's v. Sult, 32 Gratt. 203; Flint v. Gilpin, 29 W.Va. 740, 741, 3 S.E. 33; Burton v. Mill, 78 Va. 468, 481; Stanley v. Vogel, 9 Mo.App. 98.] There is an interesting discussion of the subject by Lord ELLENBOROUGH in Chamberlain v....
To continue reading
Request your trial