Stanley v. Baker

• Decision Date: 31 October 1881
• Citation: 75 Mo. 60
• Parties: STANLEY, Appellant, v. BAKER.
• Court: Missouri Supreme Court

75 Mo. 60

STANLEY, Appellant,

v.BAKER.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

Higbee & Shelton for appellant.

The 160 acres was not Baker's homestead in 1873, when plaintiff took his note. It did not become his homestead till 1876. He cannot, therefore, claim it as exempt from plaintiff's debt. Wag. Stat., pp. 697, 698, §§ 1, 7; Freeman Executions, § 241; Herman Executions, 125; 1 Am. L. R., (N. S.) 649, 650, 651, note 1; Thompson Homesteads, §§ 240, 244, 246. His intention to make it his home in the future coupled with improvements will not avail him. Hansford v. Holden, 14 Bush 210; s. c., 7 Reporter 177. He is not entitled under either section 7 or 8. The homestead is a statutory right, and equitable principles other than those recognized by the act cannot be invoked. Casebolt v. Donaldson, 67 Mo. 308. The homestead consists of the dwelling house and land used in connection therewith. There must be actual residence under a recorded title, before the land is impressed with the character of homestead. When the debt due plaintiff was contracted, Baker's homestead was in Lancaster, and it is clear that he could not have claimed the land as a homestead then against plaintiff's demand, nor could he up to the time he sold his homestead in Lancaster in 1876. He had no dwelling house on the 160 acres, and had never resided there. If he is entitled to claim it now, he must make out his claim under the homestead act and show that he had acquired this land as a homestead before the debt was contracted, or that it was obtained by the proceeds of a former homestead.

James Raley for respondent.

The filing of the deed is the time from which the homestead right begins. Shindler v. Givens, 63 Mo. 394; West River Bank v. Gale, 42 Vt. 27; Lamb v. Mason, 45 Vt. 500.

HENRY, J.

The question to be determined is, whether John Baker, on the following facts, is entitled to a homestead in a tract of land in Schuyler county, exempt from execution on a judgment in favor of appellant against said Baker and others. The agreed facts are as follows:

From 1866 to 1876 Baker was the owner in fee of several lots in the town of Lancaster, Schuyler county, upon which his dwelling house was situated, in which he resided with his family during that period. His deed to that property was filed for record April 28th, 1866. In 1869 he purchased 210 acres of land, in Schuyler county, near the town of Lancaster, of which the land now claimed as a homestead is a part, and his deed thereto was recorded in 1869. In 1876 he sold his residence property in Lancaster for $1,300, which in the same year he expended in the erection of a dwelling house on the land in controversy, and has resided there since 1876, with his family. The 160 acres claimed as a homestead does not exceed in value $1,500. It was enhanced in value about $500 by the erection of said dwelling house, and the land claimed is all used in connection with said dwelling house as a homestead, and is improved and cultivated. Plaintiff's demand against Baker consists of two promissory notes for $300 each, dated February 6th, 1873, on which judgment was rendered in March, 1877, and execution issued on said judgment July 1st, 1878. Baker testified that he purchased and improved said land with the expectation of making his home there and always expected to move upon it as his home.

Our homestead act is not free from ambiguity, and it is to be regretted that the language employed in sections 7 and 8 is not more exact. Still we are of the opinion that no reasonable construction of those sections gives Baker a homestead in the tract of land in controversy, exempt from execution issued on plaintiff's judgment. The homestead secured to the head of a family, is by section 7, subject to attachment and levy of execution upon all causes of action...