State ex rel. Sligo Iron Store Co. v. Mason

• Decision Date: 31 October 1885
• Citation: 88 Mo. 222
• Parties: THE STATE ex rel. SLIGO IRON STORE COMPANY v. MASON et al., Appellants.
• Court: Missouri Supreme Court

88 Mo. 222

THE STATE ex rel. SLIGO IRON STORE COMPANY

v.MASON et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

Krum & Jonas for appellants.

(1) The circuit court and court of appeals erred in holding that the homestead act, upon a fair construction, does not provide for the appointment of appraisers and the setting apart of a homestead by a sheriff, when property on which there is a homestead is levied upon by him under a writ of attachment in his hands. R. S., sec. 2690 et seq.; Vogler v. Montgomery, 54 Mo. 583; State, etc., v. Diveling, 66 Mo. 379; Casebolt v. Donaldson, 67 Mo. 311; Lamb v. Mason, 50 Vt. 352; State, etc., v. Emerson, 39 Mo. 89. (2) The respondent, if dissatisfied with the action of the sheriff and appraisers, could have proceeded by motion to quash the proceedings. Creath v. Dale, 69 Mo. 41; R. S., sec. 2698; Schaeffer v. Beldsmeier, 9 Mo. App. 445. (3) In the absence of any action being taken by respondent with reference to the claim of the homesteader, the report of the appraisers was conclusive. Schaeffer v. Beldsmeier, supra; Thompson on Homesteads, sec. 667. (4) It was error in the courts below to assume that an attaching or judgment creditor seeking to enforce his debt could compel a severance of the mortgage and the property which protected it.Taylor & Pollard for respondent.

(1) The sheriff exceeded his authority by setting out and releasing the realty as a homestead to Sheehan, before judgment and levy of execution. R. S., secs. 2690-2. (2) The statute gave the sheriff no authority to appoint appraisers to set out a homestead in the realty, held under the levy of attachment. Such appraisers can only be appointed after judgment and levy of execution. (3) Revised Statutes, section 2689, defines specifically the kind of homestead which shall be exempt to “every housekeeper or head of a family.” The limitation as to value is as much a matter of description as the provision relating to quantity, occupation, or ownership. Beecher v. Balsly, 7 Mich. 499; Helfenstein v. Case, 3 Ia. 287. Thompson on Homestead, 112-114. (4) Even if it be held that the sheriff has the right, when an attachment is levied, to release the homestead before judgment and execution, still, in doing this he acts at his peril, and if he makes a mistake as to the law, his good intention will not relieve him from damages to the injured party. State ex rel. v. Mason, 15 Mo. App. 141. (5) Sheehan having incumbered all the realty in question, for $3,500, it not being susceptible of division, and worth $7,500, could not prevent the incumbrance from being chargeable against his homestead interest, in part, as well as against the excess of value over said homestead; The true rule, in such case, is to charge the incumbrance pro rata against both the homestead value, and the excess over the homestead value. This is the rule followed in Vermont, from whence our homestead law was borrowed. Skouten v. Woods, 57 Mo. 380; Lamb v. Mason, 50 Vt. 345; Devereaux v. Fairbanks, 50 Vt. 760; Gregg v. Bostwick, 33 Cal. 225; Searle v. Chapman, 121 Mass. 19. (6) The usee was damaged by the act of the sheriff, in releasing the realty without authority of law. This entitles it to recover damages on the sheriff's bond. Binsmore on Sheriffs, 98; Cogswell v. Mason, 9 N. H. 48; Gwynne on Sheriffs, secs. 569, 572; Kean v. Newell, 1 Mo. 418; Berry v. Shackett, 37 Mo. 284.

HENRY, C. J.

The plaintiff sued Mason and his sureties on his bond as sheriff for an alleged breach of said bond, in releasing from an attachment the property of one Daniel T. Shehan, in the city of St. Louis, which had been levied upon by said sheriff, under an attachment issued in a certain cause in which relator herein was plaintiff, and Shehan was defendant. The property was claimed by Shehan as his homestead, and was of the value of $5,500, but was encumbered by a deed of trust executed by Shehan and wife to secure a debt of $3,500. On the claim of homestead made by Shehan the sheriff appointed appraisers, who reported that the property was of the above value and was not susceptible of division. Thereupon the sheriff released the property from the levy, and before final judgment in the cause Shehan sold it to a third person. On the above facts the circuit court found for the respondent and rendered judgment accordingly, which, on appeal to the court of appeals, was affirmed, and the sheriff and his sureties have appealed to this court.

In the view we take of this case it is wholly immaterial whether the sheriff acted prematurely or not, in having the property appraised before final judgment in the attachment cause and execution thereon. If Shehan was entitled to a homestead in the property to the extent of the excess of the value over the mortgage, the sheriff did right to release it from the levy, and would have been in no default if he had made no levy at all. The homestead act secures to every housekeeper or head of a family “a dwelling house and appurtenances and the land used in connection therewith not exceeding the amount and value herein limited, which is, or shall be, used by such housekeeper or head of a family as such homestead, together with the rents, issue, and products thereof,” exempt from attachment and execution. “In cities having a population of forty thousand or more, such homestead shall not include more than eighteen square rods of ground, or exceed the total value of three thousand dollars.” Sections 2690, 2691 and 2698, recognize a homestead right in property which exceeds in value three thousand dollars, but not the quantity, eighteen square rods. Section 2691 provides that, “If at the time of any such levy of execution, the homestead or real estate mentioned in the preceding section shall be encumbered by mortgage, the value and location of such homestead shall be fixed, as provided in said section, and thereupon such levy shall proceed in the same manner as in the case of mortgages existing upon distinct parcels of land.” The entire act throughout its provisions manifests a purpose to secure to the head of a family a certain amount of property in extent and value exempt from attachment and execution, so that whatever calamity might befall him in his trade or speculations, his family should have a home. It authorizes him to sell his homestead, and with the proceeds of sale procure another. If it exceeds in value three thousand dollars in a city of forty thousand inhabitants, why may he not sell the excess and retain the balance as a homestead? and if he may sell, why may he not mortgage the excess without forfeiting his homestead claim in the balance?

The cases relied upon by the court of appeals are, Lamb et al. v. Mason, 50 Vt. 345, and Devereaux v. Fairbanks et al., Ib. 700. In those cases the homesteader had mortgaged his homestead, and judgment creditors paid off the mortgage,...