White v. Spencer

• Citation: 117 S.W. 20,217 Mo. 242
• Parties: WHITE v. SPENCER
• Decision Date: 09 March 1909
• Court: United States State Supreme Court of Missouri

117 S.W. 20

217 Mo. 242

WHITE v. SPENCER

Supreme Court of Missouri.

March 9, 1909.

1. EXECUTION (§ 115)—SALE—RELATION.

Where a judgment is a lien on land, a sale under execution thereon relates back to the date of the judgment lien and cuts out an intervening deed by the judgment debtor.

2. HOMESTEAD (§ 1)—DEFINITION.

The term "homestead," as used in the exemption statutes, means that tract of land which, being within the statutory limitations both as to quantity and value, is held, occupied, and claimed as a homestead, as to which no judgment lien attaches.

3. HOMESTEAD (§ 103)—LIEN OF JUDGMENT— EXCESS LAND.

Rev. St. 1899, § 3751 (Ann. St. 1906, p. 2090), provides that judgments of courts of record, on the filing of a transcript in the office of the clerk of the circuit court of any other county, shall be a lien on the real estate of the judgment debtor situated in the latter county. Section 3616 (Ann. St. 1906, p. 2034) declares that the homestead, consisting of a dwelling house and appurtenances and the land, not exceeding 18 square rods, or a total value of $3,000, in certain cities shall be exempt from attachment and execution, and section 3617 declares that, on the levy of an execution on real estate of which such homestead may be a part, the householder may choose the part to which the exemption shall apply, and, if he shall refuse to do so, it shall be set off by appraisers. Held that, where a debtor was occupying land in excess of his homestead exemption, a judgment rendered against him became a lien on the excess prior to the levy of an execution, which lien was superior to a conveyance of the excess by the debtor before levy.

4. HOMESTEAD (§ 196) — EXCESS LAND — SELECTION —EFFECT.

Where, after judgment, the debtor conveyed land in excess of his homestead on which the judgment was a lien, the debtor and the purchaser were bound by the selection thus made, so that a purchaser of the excess at an execution sale under such judgment was entitled to recover the land in ejectment.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by William M. White against Richard L. Spencer. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

The following is the opinion in division, by GRAVES, J.:

"The facts pleaded and proven in this case can be stated in small compass, which, when considered, leaves but one sharp issue of law. William E. Gibson was the owner of the west 10 feet of lot 32, and all of lots 33 and 34, in block 6, in Carbry's addition to the city of St. Joseph, Mo., which tract made a parallelogram 60 by 140 feet. The frontage of 60 feet was on Beattie street, and that of 120 on 20th street. Upon this tract was the residence of Gibson, and the whole was fenced as one tract, and held, used, and claimed by him as his homestead up to May 24, 1902, he being the head of a family. May 1, 1902, the plaintiff herein recovered judgment against Gibson in the circuit court of Carroll county, Mo., for $3,217.83. On the 3d day of May following, a transcript of such judgment was filed with the clerk of the circuit court of Buchanan county, wherein was situated the property of Gibson, described as aforesaid. On May 24, 1902, Gibson, being indebted to defendant for legal services in the sum of $400, did, for and in consideration of that debt, deed to defendant the west 10 feet of lot 32 aforesaid, and 33 feet off of the north end of lots 33 and 34 aforesaid. On May 12, 1904, plaintiff in this cause had a general execution issued upon his transcript judgment, and the land previously conveyed to defendant Spencer was levied upon and sold to plaintiff, the consideration at the sheriff's sale being $5. The record also shows that, prior to the deed to Spencer, Gibson's homestead had never been admeasured or set off to him out of the tract first described herein above. It also stands admitted that the tract remaining and at the time of trial held and claimed by Gibson as his homestead was a little in excess of 18 square rods.

"In describing the transaction when this deed was made, Mr. Gibson, as a witness, said: `Q. You say that you owed Mr. Spencer at that time? A. Yes, sir. Q. And you made him this conveyance to pay his debt? A. I did. Q. State whether or not you figured up the size of the homestead which you would be allowed at that time and undertook to convey him the excess? A. I did not, but another man did. Q. That was your purpose? A. Yes, sir. Q. And what you undertook to retain there, what you did retain there, you now hold as your homestead? You undertook to release that? A. I did. Q. Now, Mr. Gibson, what is the value of that land which you retained there? A. The land I retained? Q. Yes, with your house and improvements on it. A. I suppose it is worth twenty-four or five hundred dollars. Q. Do you recall what you scheduled it at when you filed an application to be adjudged a bankrupt? A. I think it was three thousand dollars. Q. At that time you had already sold off this to Mr. Spencer? A. No. I think not. I don't recollect. Q. You remember you made your deed to Mr. Spencer in the same month the judgment was rendered against you down there? A. I guess I did. Q. You did not apply for a discharge in bankruptcy until some year or two afterwards? A. I don't recollect what I scheduled it at, but I never valued the place as a whole at $3,000, and I will take to-day $2,500 for what I have got there. Q. Now, at the time you made this deed to Mr. Spencer, you expected Mr. White to undertake to levy upon this excess, and have it set off? A. I suppose so. Q. And it was for the purpose of giving it to Mr. Spencer instead of him? A. For the purpose of paying a just debt instead of what I considered an unjust debt. Q. It was for the purpose of giving it to Mr. Spencer instead of letting Mr. White get it? A. The man I justly owed. Mr. Spencer: We object to that. The Court: I don't see the relevancy of it. Q. You say it was for the purpose of paying a just debt instead of an unjust one? A. One I recognized as my debt. Q. Instead of one you thought was unjust? A. Yes, sir, instead of one I thought then, and think now, and always will, was unjust. Q. The judgment Mr. White had? A. Yes, sir.'

"Direct examination by Mr. Spencer: `Q. Was there anything done by you, or for you, towards setting out your homestead prior to the making of the deed by you and your wife to me of your homestead? (Objected to by plaintiff. Objection overruled.) Q. Was there anything done by you, or any one for you, towards setting out a homestead there prior to the making of the deed to Richard L. Spencer? A. No, sir. Q. What was done and said at the time of making the deed with reference to it? (Objection.) The Court: State what was done. (Plaintiff objects.) The Court: He is not undertaking to prove the contents of the deed; he is undertaking to find out when the homestead was set out. The Witness: It was set out immediately preceding the deed. The Court: Was it set out preceding the deed? The Witness: I said immediately— I mean before the making of the deed Mr. Spencer come to me and told me that I owed him justly, and that he would take the excess of my homestead for the fee, and he figured it out. The Court: What did you do about setting off your homestead before this deed was made? The Witness: Didn't do anything; only just at the time it was made, I made the deed immediately. The Court: Then what did you do? The Witness: Made the deed. Q. Were there any measurements staked off or division made of the property prior to the making of the deed? A. No, sir. Q. Was there anything done at the time of making the deed, except at the time of making the deed a measurement was made there of what you would grant me, and that there was a homestead and a little in excess left there to you? A. Yes, sir. Q. Was that all that was done? A. Yes, sir. Q. Up to the moment of making the deed was that all made under one inclosure, and held and claimed by you as a homestead? A. Yes, sir.'

"Cross-examination by Mr. Eastin: `Q. I don't quite understand you. You said that just before the deed was made this ground that was to be conveyed to Mr. Spencer was inclosed? A. He came to me with the proposition; I told him to measure off and leave me the homestead, and I would deed him the balance. I done so. Mr. Spencer: Was the making of the deed and the doing of that one transaction? The Witness: Yes, sir. Q. But you had to get what was the homestead out before the deed was made? A. Yes, sir. Mr. Spencer: Was it all one transaction? The Witness: Yes, sir. The Court: You say he figured it out? The Witness: Yes, sir. The Court: Were there any stakes driven or anything there before the deed was made? The Witness: No, sir, never was a stake driven. Q. What did you do to mark out your homestead before this deed was made? A. Didn't do anything; when he came he couldn't get the excess on one side of the house or the other side; that is the reason the 10 feet was taken off the east side of the property and the balance off the rear. Mr. Spencer: You wanted to retain your homestead? The Witness: Yes, sir. Didn't want somebody else jammed up against me. Mr. Spencer: Was the making of this deed and the cutting off of the excess all one transaction? The Witness: Yes, sir. Mr. Eastin: You didn't need any stakes? The Witness: No, sir, didn't need any stakes. Mr. Eastin: When you fixed this deed, or when you determined what should go in the deed, you had a clear idea how much you conveyed off on each side? The Witness: Yes, sir. Mr. Eastin: You had to have your idea before you made your deed? The Witness: I did have it. Mr. Eastin: And you didn't claim this that was conveyed away—didn't expect to claim it as your homestead? The Witness: No, sir. The Court: Did you claim it up to the time the deed was made? The Witness: Yes, sir. Mr. Spencer: You claimed that up to the time of making the deed as part of your homestead? The...