St. Louis Brewing Ass'n v. Howard

• Decision Date: 14 June 1899
• Citation: 51 S.W. 1046,150 Mo. 445
• Parties: ST. LOUIS BREWING ASS'N v. HOWARD.
• Court: Missouri Supreme Court

51 S.W. 1046

150 Mo. 445

ST. LOUIS BREWING ASS'N v. HOWARD.

Supreme Court of Missouri. Division No. 1.

June 14, 1899.

HOMESTEAD — EXEMPTIONS — EVIDENCE.

The owner of land lived on it for four years while single, and afterwards moved away, and lived for years in another county, and after marriage lived at various places; but, though he had some stock on part of the land not rented, he had no house or furniture there, and his wife was never there, except once on a visit to the tenant. Held, that he had no homestead rights in the land, though he always intended to return to it to live, and did so after levy of execution thereon.

Case certified from St. Louis court of appeals.

Action by the St. Louis Brewing Association against Henry C. Howard. There was a judgment for plaintiff, and from an order setting aside a sale under execution plaintiff appealed to the St. Louis court of appeals, which certified the case to the supreme court. Reversed.

The plaintiff obtained judgment against the defendant in the circuit court of St. Francois county on the 18th of May, 1894, for $389.85, and on the 10th of June, 1894, a transcript of the judgment was filed and recorded in the office of the clerk of the circuit court of Washington county. Thereafter, on the 10th of July, 1895, the plaintiff caused two executions to be issued by the circuit court of St. Francois county, — one directed to the sheriff of St. Francois county, and the other to the sheriff of Washington county. The sheriff of St. Francois county notified defendant personally of the fact that he held the execution issued to him against him, and properly informed defendant of his exemption rights under the statute, and called his attention to some property in St. Francois county which he thought defendant owned, but he said he had nothing. At the same time, to wit, on the 31st of July, 1895, the sheriff of St. Francois county served upon defendant a notice, in writing, from the plaintiff, dated July 22, 1895, of the issuance of the execution against him by the circuit court of St. Francois county, directed to the sheriff of Washington county. At that time the defendant was living at Elvins, in St. Francois county, and the notice was served on him there. Before this notice was served, to wit, on the 23d of July, 1895, the sheriff of Washington county had levied the execution directed to him on the S. W. ¼ of the S. W. ¼ of section 10, and the W. ½ of section 15, and the N. ½ of the N. E. ¼ of section 15, in township 35 N., range 3 east, aggregating 440 acres, in Washington county; and thereafter, on the 27th of August, 1895, without any further notice or procedure, sold the land in two parcels, — one for $75, and the other for $100, — and the plaintiff became the purchaser, and on the 27th of August, 1895, the sheriff made a deed thereof to the plaintiff. The execution was returnable on the second Monday in November, 1895, to the circuit court of St. Francois county, and on the 12th of November, 1895, being the second day of the return term of the execution, the defendant filed a motion in the circuit court of St. Francois county to set aside and quash the sale, based upon the following grounds: "First, because the said defendant is a housekeeper and the head of a family, and as such is entitled to a homestead in such lands, and the said sheriff in whose hands the execution was placed failed to apprise defendant of his right of exemption as required by statute, and levied upon and sold said property without giving defendant an opportunity to select a homestead, which homestead he now claims and ever has claimed; second, because said defendant is the head of a family, and as such is entitled to hold exempt from execution levy and sale the property to the amount limited in said section 4903, Rev. St. Mo. 1889, and at the time of the levy of this execution defendant had no opportunity to select the same; third, that no notice was given defendant of the issue of the execution to the sheriff of Washington county, as required by the statute, and that no notice of levy of said execution on the said land was filed by the said sheriff, as the law requires, in the office of the circuit clerk and recorder of Washington county, Mo.; fourth, that said lands were sold in gross, and not in parcels such as would have proved most inviting to bidders, and thus realized the greatest sums for the interest of the parties, but offered and sold the same as one piece," etc. Upon the hearing of this motion it appeared that the 440 acres were deeded to the defendant and his brother, George W. Howard, by their father, on the 22d of November, 1886, and that the brothers divided the property between them, the defendant getting 160 acres, which was worth from $1,000 to $1,200; that defendant's first wife died in 1883 without issue, and that he married again on the 30th of July, 1893, and has one child by that marriage; that, after he acquired the property, he lived on it for about four years; that he had lived at Bonne Terre, in St. Francois county, for 11 years; that in 1894 he lived at Flat River, in St. Francois county, and was engaged in the saloon business; that in 1895 he lived at Elvins, in St. Francois county, and was also engaged in the saloon business; that he had never lived on this property after his second marriage in 1893; that, for the four years next before the sheriff's sale, most of the property was rented to Berryman, with whom defendant boarded when there; that defendant kept some stock on the part not rented, but had no furniture there; that in June, 1895, defendant commenced to build a house upon this land; that in July, 1895, he lived at Elvins in a house rented from Mr. Elvins; that in August, 1895, he lived part of the time at Flat River and part of the time on this property, and finally gave up the house at Elvins about the 1st...