Tennant v. Pruitt

• Decision Date: 20 February 1888
• Citation: 7 S.W. 23,94 Mo. 145
• Parties: Tennent et al., Appellants, v. Pruitt et al
• Court: Missouri Supreme Court

7 S.W. 23

94 Mo. 145

Tennent et al., Appellants, v. Pruitt et al

Supreme Court of Missouri

February 20, 1888

Appeal from Taney Circuit Court. -- Hon. W. F. Geiger, Judge.

Reversed and remanded.

James R. Vaughan for appellants.

(1) In order to authorize a recovery in ejectment against an execution debtor, it is only necessary to show that at the time of the levy and sale the defendant, or execution debtor was in possession of the land in suit and was in such possession at the bringing of the suit. (2) In order to protect a homestead from a debt there must not only be a deed to the claimant, but the deed must be duly filed on record and must have been so filed before the debt accrued. Shindler v. Givens, 63 Mo. 394; Griswold v Johnson, 22 Mo.App. 466. (3) A homestead in Missouri consists of a "dwelling-house and appurtenances and the land used in connection therewith," and before the "land used in connection therewith" can be exempt from execution on a debt, not only must there be a deed on record to it, but there must be a deed on record to the dwelling-house and appurtenances in the name of the claimant that protects the "land used in connection therewith" from sale under execution. It devolves on the claimant to show that these deeds are on file. In this case no deed to the residence was shown to have been filed, and more-over, the defendant, Pruitt, swears it was the separate estate of his wife. A separate estate in a wife to a dwelling-house will not support a homestead claim against creditors of the husband as to lands "used in connection therewith." If any title except that of the husband, properly recorded, will support such claim it must be a general estate in the wife. R. S., sec. 2689 amended; Sess. Acts, 1881, p. 140; Stamm v. Stamm, 11 Mo.App. 598. (4) The homestead right is strictly legal, and equitable principles, other than those expressly recognized in the act, cannot be invoked by one claiming a homestead right. Although the defendant, Pruitt, may have attempted to obtain a deed, in fact he did not, and at best he only had an equitable claim or contract for a deed, which is not sufficient to support the home-stead claim. Casebolt v. Donelson, 67 Mo. 308. (5) The defendant, Pruitt, admitted upon the trial that, at the time of the judgment, levy, and sale, he had a tenant on the land in suit, from whom he was getting rent, and he also swears that his possession was by a tenant. A possession by a tenant is not sufficient to maintain and support a claim of homestead, but an actual possession in person is requisite. The evidence of the defendant shows an abandonment of any homestead claim he may have had to the land in suit, and in this connection the court will take notice that there is no evidence that the defendant at any time intended to return to the land. Thompson on Homesteads, secs. 241, et seq., 273 to 275, 255 and 257

J. J. Brown with D. N. Payne for respondents.

(1) If respondent left his homestead, with the intention, at the time, of returning, and left a part of his machinery, live stock, and other things on the home-stead and went to look at the country, such absence was temporary, and was not an abandonment of it, and he did not lose his right to claim it as such homestead. Thompson on Homesteads, secs. 266, 267; 75 Mo. 269. The respondent, as was clearly shown by the evidence, at the time he left the land in controversy to go to his wife's land on the hill, did so with the intention of returning to the same, hence said land was exempt from levy and execution as a homestead. (2) The policy of the law is to secure housekeepers and heads of families homes which cannot be taken from them for debts contracted after the acquisition of the homestead. Acquisition of the land must be followed by its occupancy as a homestead by the claimant, and this occupancy when it occurs relates back to the time when the deed was filed for record. 83 Mo. 517, and cases there cited. In Missouri, however, the recording of the deed whereby the land is acquired, together with the visible occupancy and use of the premises as a homestead, are all that the law requires, and if respondent occupied and used the land in controversy as a homestead, under a deed executed by Haworth prior to the creation of the debt under which it was sold, it was, to all intents and purposes, a homestead notwithstanding there was an erroneous description of the land. (3) If the respondent purchased the land in controversy and went into possession, prior to the creation of the debt under which it was sold, and had not disposed of the same, but was occupying it as a homestead, then he was the owner of the land at the time of the rendition of the judgment under which it was sold, and had the right to hold it as such homestead, exempt from attachment and levy of...