Stinde v. Behrens

• Court: Missouri Court of Appeals
• Writing for the Court: HAYDEN
• Citation: Stinde v. Behrens, 6 Mo.App. 309 (Mo. App. 1878)
• Decision Date: 10 December 1878
• Parties: CONRAD R. STINDE, Plaintiff in Error, v. WILHELMINA BEHRENS ET AL., Defendants in Error.

6 Mo.App. 309

CONRAD R. STINDE, Plaintiff in Error,

v.WILHELMINA BEHRENS ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Dec. 10, 1878.

1. Property exempt from execution under the Homestead Act is no longer exempt when it ceases to be a homestead.

2. Homestead laws have no extra-territorial force. Where one in debt sells his homestead in Kansas and gives the proceeds to his wife, who in her own name purchases real estate in Missouri, the latter property, not being a homestead, is liable for the husband's debts existing at the date of the purchase; and this liability is not affected by the fact that the purchase was made with the proceeds of property in which the wife had had a temporary and conditional homestead interest in Kansas.

ERROR to St. Louis Circuit Court.

Reversed and remanded.

DEXTER TIFFANY and FINKELNBURG & RASSIEUR, for plaintiff in error: Laws of exemption and homestead have no extra-territorial force, and proceeds of property exempt from execution in another State are not on that account protected from execution when found in this State.-- Boykin v. Edwards, 21 Ala. 261. When property is sold with intent to leave the State, the proceeds are not protected by the statute. The intent to leave the State withdraws therefrom the protection of the statute.-- The State v. Davis, 46 Mo. 108; Jordan v. Godman, 19 Texas, 275; Trawick v. Harris, 8 Texas, 312; Tenney v. Sly, 44 Ind. 269; Orr v. Box, 22 Minn. 485. Rights of homestead and exemption are of favor, and are not vested rights.-- Sparger v. Cumpton, 54 Ga. 359. And affect only the remedy.-- Helfenstein v. Cave, 3 Iowa, 287; Nuvall v. Hayden, 8 Iowa, 140; Morgan v. Neville, 74 Pa. St. 52. A wife has only a privilege, and has no estate in a homestead in Kansas; when she consents to a sale, her whole interest is gone, no matter what motive she had in consenting.-- Jenness v. Cutter, 12 Kan. 500.

T. G. C. DAVIS, for defendants in error: Homestead laws should be liberally construed, for the purpose of securing to families homes protected from creditors of the heads of such families.-- Vogler v. Montgomery et al., Nev. Rep.; Cox v. Wilder, 2 Dill. 46; McFarland v. Goodman et al., 13 Am. L. Reg. N. S. (O. S., vol. 22) 697; Duester v. Bill et al., 11 Mo. 114; Cromb v. Murphy, 24 Wis. 365.

HAYDEN, J., delivered the opinion of the court.

This is a bill to divest title to certain land out of Wilhelmina Behrens, wife of the other defendant, and vest the title in the plaintiff, on the ground that the land was conveyed in fraud of the plaintiff, a creditor of the husband. The plaintiff claims under a sheriff's deed conveying the interest of the husband in the land. In April, 1875, the plaintiff recovered a judgment upon which the execution issued by virtue of which the property was sold. In September, 1874, the defendants, being husband and wife, were living in the State of Kansas, upon a homestead property which was in the husband's name, and which he had held as such from the year 1871, having paid for it with his own money. Behrens had made an assignment for the benefit of his creditors in August, 1873, but had retained this homestead as exempt. In 1874, and while owing to the plaintiff the debt on which the latter obtained the judgment already described, Behrens, intending to leave the State of Kansas, sold the homestead property, with his wife's consent, and for it received $600, which he paid to his wife, and the real estate now in controversy, taking a deed for the latter in his wife's name; the deed, however, containing no words indicating that she held the land as her separate property. Behrens and his wife then moved into Missouri, and in October, 1864, occupied the property which was subsequently levied upon as stated.

The homestead law of Kansas was put in evidence before the referee to whom the case was referred, and upon his report and recommendation the bill was dismissed by the court below.

We think that the view taken by the defendants involves not only a misconception of the homestead law of Kansas, but attempts to give that law an operation which, independently of any question of construction, it cannot have in Missouri. The argument of the defendants tacitly assumes that the wife had an estate in the property which was used in Kansas as a homestead, and supposes that this estate was independent of the limitations imposed by the homestead law. It seems further to assume that the law of Kansas had an extra-territorial effect, and operated upon the real estate in Missouri which was conveyed to the wife. If the Kansas property had been exchanged in Kansas for money or goods in Missouri, it could be urged with as much truth as now that the consideration for the transfer was exempt property, upon the faith of which creditors did not contract and to which they had no claim. Yet it is obvious that money or goods here would be governed by the lex fori, and that the creditors of the husband could attach here upon cause shown, or seize upon execution. But if an immunity created by the statute of Kansas would not exist in reference to money or goods in Missouri, it is difficult to see why it should attach itself to the real estate here involved.

We may suppose a State with no homestead law, and whose policy as shown by its execution laws was to make all property, without exception, subject to process of the creditor, and another State which,...