Wade v. Jones

• Decision Date: 31 October 1854
• Citation: 20 Mo. 75
• Parties: WADE, Appellant, v. JONES, Respondent.
• Court: Missouri Supreme Court

20 Mo. 75

WADE, Appellant,

v.JONES, Respondent.

Supreme Court of Missouri.

October Term, 1854.

1. A man may be the “head of a family,” within the meaning of the execution exemption act, though he has neither wife nor children.

2. A widowed sister keeping house for her brother, is a “member of his family,” upon whom process may be served.

Appeal from Lincoln Circuit Court.

This was an action begun by Wade, to recover the value of personal property, consisting of a negro woman, two cows and their calves, and a lot of bacon and other articles, alleged to have been wrongfully taken by Jones, the defendant. Jones answered that he took the property as constable, under an execution issued by a justice of the peace, and directed to him. The cause was submitted to the court upon an agreed statement of facts, which was substantially as follows:

The property was levied upon and sold under a regular execution, directed to the defendant. At the time of the levy, plaintiff was living on and cultivating a rented piece of ground. He had no wife nor child. His widowed sister, with four small children, lived with him and kept house for him, having no other home. He supported her and her children. The property levied upon did not exceed the value of eighty-seven dollars, and plaintiff had no other property to exceed the value of ten dollars.

Upon these facts the court below gave judgment for the defendant, and the plaintiff appealed.

J. O. Broadhead, for appellant.

There is no reason, to be drawn either from the language or the policy of the law, why the words “head of a family” should be applied only to the father or husband. A family is a collection of individuals, having a common head. (1 Burrill's Law Dic. p. 470.) This common head may be a father or brother or any other near relative to whom, by the customs of society, the weak and helpless, whether woman or children, may look for protection. (2 Bur. Law Dic. p. 785.) The members of the family do not consist merely of those whom the head of the family is under some legal obligation to protect. A father, who has living with him a family of grown daughters, is certainly the “head of a family,” and yet he is under no legal obligation to support them. (See also Lambert on Dower, p. 11.)

E. Hunt and W. Porter, for respondent.

The “family” contemplated by the act is that only which grows out of the marriage relations--which constitutes a legal charge on its head. It was the better to enable the husband and father (or mother, if the father be dead or absent,) to discharge the legal obligations, that our legislature enacted these exempting acts. Plaintiff was not the head of his sister's family; she was the head of her own family; she was the natural guardian of her children, and had the right to direct and control them, until otherwise directed by a court of competent authority. She did not by living with plaintiff. lose any of her legal rights and privileges. If an execution had been levied on her property, she could, as head of her little family have claimed an exemption of it from sale. Her family was not broken up and separated from her, but was living with her, and the fact of her not occupying her own house did not deprive her of her rights as head of her own family. (Woodward v. Murray, 18 J. R. 400.) If her family exempted her own property from sale, surely the same family could not exempt the property of the plaintiff.

RYLAND Judge, delivered the opinion of the court.

1. We have no doubt, from the above agreed statement of facts, that the plaintiff comes within the meaning of the phrase “head of a family,” and that he should have been so considered by the court below.

The Supreme Court of Tennessee, in 1842, in the case of Bachman v. Crawford, (3 Humph. 216,) held the following language: “When a man controls, supervises and manages the affairs about a house, he is, in the largest sense, the head of the family, and all who reside in the house are members of the family. But it may be a large boarding establishment, in which half a dozen distinct families reside. We do not suppose that these families lose their character as such, because they reside under another man's roof, and feed at a common table. So two families, with equal rights and claims, may reside together, and although thus associated, they all constitute, in a large sense, one...