State ex rel. Meinzer v. Diveling

• Decision Date: 31 October 1877
• Citation: 66 Mo. 375
• Parties: THE STATE ex rel. MEINZER, Appellant, v. DIVELING.
• Court: Missouri Supreme Court

66 Mo. 375

THE STATE ex rel. MEINZER, Appellant,

v.DIVELING.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Schuyler Circuit Court.--HON. JOHN W. HENRY, Judge.

The homestead act was passed March 20th 1866.

Higbee & Shelton for appellant.

1. Jacob Diveling could not claim the land as his homestead, nor can his widow, as against the relator's demand. Wag. Stat., p. 698, § 7; 1 Am. Law Reg. (N. S.) 648, 649, note; Shindler v. Givens, 63 Mo. 394; Lincoln v. Rowe, 64 Mo. 138; Farra v. Quigly, 57 Mo. 284. The entry is noted on the plat book of entries; but no patent was ever issued, and Diveling never had any title of record. A patent to land from the government is entitled to record the same as any other conveyance. By obtaining one and filing it for record, he might have obtained the benefit of the act.

2. The decree in the cause between Frederick Meinzer, as plaintiff, Sibilla Diveling, as administratrix of the estate of Jacob Diveling, deceased, and John W. Diveling, defendants, estops the present defendants from pleading that said lands were the homestead of deceased. 1 Am. Law Reg. (N. S.) p. 710; Union R. R. & T. Co. v. Traube, 59 Mo. 362; Gould v. R. R. Co., 91 U. S. 533.

F. T. Hughes for respondent.

1. A construction of the 7th section that would exclude all persons in the State from the benefits of our homestead law, who have not procured a patent from the general government, and had the same recorded in the proper county, would certainly be a very narrow and cold construction of the act, one which our Legislature never could have intended, whatever language it may have used in drafting the section. But I am sure the language of the section admits of no such construction.

2. Diveling had an existing estate when the act was passed, and no record of deeds is necessary.

3. The action of the court in setting aside the deed of Diveling to his son, made during his life time, cannot avail relator. If the deed was fraudulent, the title remained in the father, and at his death vested in his wife and minor children as homestead; if not, then the title was in the son, and relator cannot sell it for debts of deceased. Vogler v. Montgomery, 54 Mo. 583.

NORTON, J.

This is a suit instituted on the bond of Sibilla Diveling, administratrix of the estate of Jacob Diveling. It appears from the pleadings in the case that in 1869, Jacob Diveling executed his note to relator for the sum of $500; that after the execution of said note the said Diveling made a voluntary conveyance of one hundred and sixty acres of land in Schuyler county, to John W. Diveling; that relator obtained judgment on said note against said Diveling in the Schuyler county circuit court, and instituted a proceeding in said court against John W. Diveling and Sibilla Diveling, administratrix of Jacob Diveling, he, the said Jacob, having in the meantime died, and relator having before the institution of said proceeding, had an allowance against his estate in the probate court of said county for $257, which was assigned to the fourth class of demands. Said proceeding resulted in a decree declaring the conveyance from Jacob Diveling to John W. Diveling fraudulent and void as to creditors, and directing Sibilla Diveling, administratrix, to make and file an inventory of the land thus attempted to be conveyed to John W., in the probate court of said county. The failure by the said Sibilla to make and file this inventory of the land, after having been requested to do so by relator, is the alleged breach of the bond.

Defendants, in their answer, admit the refusal of the administratrix to inventory the land, and allege that she was not bound to do so, because the land in question was the homestead of said Jacob Diveling, and not subject to the payment of relator's debt.

On the trial it was admitted that the land in question was entered by Jacob Diveling, deceased, in November, 1852, and that the certificate of entry was issued to him, and that no patent was ever issued to said deceased in his lifetime, and has not been issued by the United States government for said land, and the said deceased has no conveyance of any kind to him of record, except an entry upon the plat book, which is duly certified and on file in the recorder's office for the record of deeds in Schuyler county, previous to the accruing of plaintiff's demand; that said plat shows that the deceased, Jacob Diveling, duly entered said land before the accruing of plaintiff's demand. The cause was submitted to the court upon the above state of facts, without the intervention of a jury, and judgment was rendered in favor of defendants, from which plaintiff has appealed.

It is urged, as a reason for the reversal of the judgment, that the facts admitted show that the land in question was not such homestead, as under the law exempted it from sale for the satisfaction of relator's debt, because no deed showing title in Jacob Diveling had been placed on record anterior to the contracting of the debt to relator. The question here presented involves a construction of the 7th section, Wag. Stat., p. 698, which is as follows: “Such homestead shall be subject to attachment and levy of execution upon all causes of action existing at the time of acquiring such homestead, except as herein otherwise provided; and for this purpose such time shall be...