Victor v. Grimmer

• Decision Date: 04 June 1906
• Citation: 95 S.W. 274,118 Mo. App. 592
• Parties: VICTOR v. GRIMMER et al.
• Court: Missouri Court of Appeals

95 S.W. 274

118 Mo. App. 592

VICTOR v. GRIMMER et al.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

HOMESTEAD—ABANDONMENT—ACQUISITION OF OTHER DOMICILE.

On an issue as to whether the owner of a homestead had abandoned it, it appeared that he rented it and moved to a house belonging to his wife; but he testified that he had no intention to abandon the homestead, but merely moved because a saloon had been licensed nearby, and that he expected to have the saloon abated in consequence of efforts of himself and others. When he moved, he left garden tools, furniture, and chickens on the place. Held, that there was no abandonment.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by Mary C. Victor against Mrs. G. E. Grimmer, sued as Mrs. Grimsley, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Fyke & Snider, for appellant. W. Rea Heath, for respondents.

BROADDUS, P. J.

This is an appeal from the judgment of the circuit court in overruling a motion to quash the return of the officer on an execution setting aside the property levied on as exempt because it was the homestead of one of the defendants. The judgment bears date April 13, 1901, and was rendered in favor of the plaintiff and against the defendants. In October following an execution was issued under the judgment, and levy made by the officer on the lot claimed by defendant Heath as a homestead. The sheriff set off the property to defendant Heath as his homestead. In December, 1904, Heath rented the premises to a man by the name of Miller for an indefinite length of time and moved to another house, which he claimed belonged to his wife. In March, 1905, a second execution was issued on the judgment, which was also levied upon said property as Heath's, who again filed his claim for exemption as a homestead. The sheriff made his return, giving as a reason for his refusal to sell it under the execution that it was exempt as defendant's homestead. To this return plaintiff filed her motion to quash. The court overruled the motion, from which action of the court plaintiff appealed.

The evidence of defendant Heath was that he did not move from the property with the intention to abandon it as a homestead; that the reason for his doing so was that a saloon had been licensed near by, which was distasteful to his wife and himself, and that he moved onto the property of his wife with the expectation of returning as soon as he could have the saloon abated; that he and other citizens had made persistent afforts to have the proper authorities revoke the saloon license, but up to the date of the trial had not succeeded in so doing, but that he had every assurance of ultimate success in that direction, at which time he would return to his homestead. He further stated that he left his garden tools, some lumber, a bedroom set, kitchen and porch chairs, and some 50 or 60 chickens on the place, which were still there at the time of the trial. In this latter statement he is corroborated by Miller, his tenant. His evidence stands practically uncontradicted. It is true plaintiff showed that he was occupying his wife's property as his home at the date of the trial, which of itself proves but little in contradiction to what we have stated.

The plaintiff insists, first, that the defendant's right to the homestead ceased to exist when he rented to Miller and acquired another residence with no fixed purpose of returning. In Smith v. Bunn, 75 Mo. 559, the court quotes with approval the following language of the opinion in the Matter of the Estate of John Phelan, 16 Wis. 80: "When the owner of a house and lot voluntarily removes from it, and takes up another residence in the same town,...