Tapley v. Ogle

• Decision Date: 26 February 1901
• Citation: 162 Mo. 190,62 S.W. 431
• Parties: TAPLEY v. OGLE.
• Court: Missouri Supreme Court

62 S.W. 431

162 Mo. 190

TAPLEY v. OGLE.

Supreme Court of Missouri, Division No. 2.

February 26, 1901.

EXEMPTIONS — HOMESTEAD — ESTOPPEL.

1. That a judgment debtor claimed property as exempt under Rev. St. 1889, § 4906, which permits the head of a family to select and claim as exempt, in lieu of property specifically exempted which he does not own, any other property not exceeding $300 in value, does not preclude him from afterwards asserting that the same property was exempt as a homestead, since he could not part with his homestead in any event, except as indicated by section 2395, which requires all interest in lands to be conveyed by deed.

2. That a judgment debtor sued the sheriff for ignoring his claim of exemption as head of a family, under Rev. St. 1889, § 4906, and recovered the value of the property as damages, does not estop him to claim the property as exempt as his homestead.

3. That a judgment debtor gave the purchaser at execution sale written consent to take possession of the land and sell it does not estop him to claim the property to be exempt as a homestead; the writing constituting a mere license, which was never acted on, and which was revoked by the subsequent conveyance of the property by the debtor.

Appeal from circuit court, Pike county; R. F. Roy, Judge.

Action by Joe Tapley against Hugh L. Ogle. From a judgment for plaintiff, defendant appeals. Reversed.

J. D. Hostetter, for appellant. I. C. Dempsey and Tapley & Fitzgerald, for respondent.

BURGESS, J.

This is ejectment for the possession of block 1 in the town of Spenceburg, Pike county. The petition is in the usual form, and the answer a general denial. The cause was tried before the court, a jury being waived. The facts are about as follows: The defendant is a son-in-law of one C. C. Ware, against whom and the defendant one Milton D. Jacobs recovered judgment in the circuit court of said county for the sum of $501, upon which execution was issued; and thereafter, on the 29th of May, 1895, at a sale by the sheriff under said execution, plaintiff became the purchaser of said block at the price of $1, and for which he received the sheriff's deed on the 29th day of January, 1896. William T. Horn bought a 38-acre tract of land at the same sale, for which he paid the sum of $240. Before said sale, however, and while the execution was in the hands of the sheriff, Ware, who was the head of a family, notified the sheriff, Dougherty (he having the execution), that he claimed the lots or tracts of land referred to, as exempt from execution, under the provisions of section 4906, Rev. St. 1889, in lieu of other personal property which he did not own; the land not exceeding $300 in value. The sheriff ignored this claim for exemption and sold the property; Horn and Tapley becoming the purchasers, as before stated. Ware thereafter sued and recovered judgment in the circuit court of said county against the sheriff and his sureties on his official bond for $290 damages, for not appraising and setting apart the property exempt to him, as required by statute. He alleged in his petition in that case that the sheriff did "expose for sale and did sell under said execution all of the relator's [plaintiff's] right, title, and interest in and to said real estate, and at said sale one William T. Horn purchased the said N. W. qr. of S. W. qr. of Sec. 30, Twp. 54, R. 4 W., at the price and sum of $240, and one Joe Tapley purchased block one (1) in said town of Spenceburg, Mo., at the price and sum of $1.00, and the said purchasers thereby acquired all of relator's title to the respective tracts so purchased by them; said Dougherty thereafter making deeds conveying to each all of relator's right, title, and interest in the respective tracts so purchased by them at said execution sale." Ware acquired title to said block 1 by deed which was recorded May 26, 1881, several years prior to the giving of the notes to Jacobs, which were thereafter reduced to judgment, and under which judgment the property was sold, and was occupying it as a homestead at the time of the sheriff's sale. He testified on the trial of his suit against the sheriff, Dougherty, on his bond, that the block in question was worth $50. In November, 1896, Ware...