119 S.W.2d 256 | Mo. | 1938
Lead Opinion
The principal contested issue is: Has the wife homestead rights in an estate by the entirety which she may assert subsequent to the death of her husband against an unsecured indebtedness of herself and husband incurred subsequent to the filing for record of the deed conveying said estate. Briefly of the facts.
Edwin J. Summers and Mary E. Summers were husband and wife. The record title to an eighty acre tract of land stood in the name of Mary E. and the record title to an abutting eighty stood in the names of Edwin J. and Mary E. as husband and wife, subject to a secured indebtedness of $2,200. Thereafter, on February 27, 1919, Edwin J. and Mary E. borrowed $2,200 from Charles W. Ahmann, executing their unsecured note therefor, and discharged the aforesaid secured indebtedness therewith. Edwin J., Mary E., and their minor son occupied the two eighties as the home place; and after the death of Edwin J. on April 21, 1923, Mary E. and the minor son continued to so occupy said farm. On January 15, 1935, Mary E. deeded to John W. Kemper the whole of said farm, the recited consideration being $1.00 and other considerations; and on January 24, 1935, John W. Kemper and Mary E. Summers were married.
Charles W. Ahmann, having acquired a deed to said farm at a sheriff's sale under special execution in connection with a judgment obtained July 2, 1935, against Mary E. Summers Kemper on the aforesaid $2,200 note, instituted this action against said Mary E. Summers Kemper and John W. Kemper, and the tenants on said farm, seeking, in the first count, a decree invalidating said deed from Mary E. Summers to John W. Kemper and the vesting of title in plaintiff, et cetera, and, in the second count, ejectment for possession, damages, rents and profits.
The judgment was to the effect that Mary E. possessed homestead rights in the eighty held in her own name, defeating any rights of plaintiff against said eighty and that the Summers-Kemper deed passed a good title to said eighty; but that the death of a husband cannot create a homestead in the widow in land held by the entirety; that upon Edwin J.'s death Mary E. had a greater estate than a homestead — the property became her absolute property: she became the sole owner — and as to the estate formerly held by the entirety Mary E. first acquired absolute title (and first acquired rights of homestead) upon the death of Edwin J., the husband, the head of the family, on April 21, 1923, long after she became indebted to plaintiff (February 27, 1919); and that as to the land formerly held by the entirety said Summers-Kemper deed was void as to plaintiff and title was divested out of John W. Kemper and vested in plaintiff. The judgment on the ejectment count went accordingly.
Defendants acquiesce in the court's finding that the Summers-Kemper *948 deed was fraudulent as to plaintiff and that plaintiff is entitled to have the same declared ineffective unless it conveyed rights — grantor's homestead — beyond the reach of plaintiff. Plaintiff has not appealed and the correctness of the holdingnisi as to the property held in the wife's name stands unquestioned. The litigants present no contest with reference to the rules of law that a homestead does not exist in land against a prior incurred indebtedness or that an existing homestead is unaffected by a subsequently incurred unsecured indebtedness; but they sharply contest the time when the widow acquires a homestead in an estate by the entirety — defendants asserting the homestead attaches upon the recording of the grant of the estate and plaintiff asserting the homestead first exists upon the death of the husband (housekeeper or head of the family). We limit the review to such of the presented issues as are deemed determinative of the appeal.
[1] Speaking to the estate by the entirety, we can agree with the court nisi that the wife acquires no homestead rights by descent; that the death of the husband does not create homestead rights in the wife; and that upon the husband's death the wife has a greater estate than a homestead. But the wife has a greater estate in lands held by the entirety than a homestead prior to the death of the husband. The estate by the entirety in Missouri is the same as the common law estate by the entirety. [Otto F. Stiffel's Union Brewing Co. v. Saxy,
So, if Mary E. possessed homestead rights in the eighty held in her own right (unquestioned here), she, under the authorities supra, possessed like homestead rights in the eighty held by the entirety. Prior to her husband's death she was no more a housekeeper or the head of a family with respect to the one than she was with respect to the other. Whatever estate she acquired was acquired under the grant, which, after the death of her husband continued in her as before.
Such liberal construction as falls within their words and spirit has been accorded the homestead laws for the protection from creditors of those within their beneficent purpose. [Balance v. Gordon,
[2] But plaintiff contends the judgment nisi should be affirmed because John W. Kemper is liable for the antenuptial debts of his wife to the extent of the property acquired by him from her; citing Sec. 3004, R.S. 1929, Mo. Stat. Ann., p. 5073; Babb v. Bruere,
Testimony placing a value on the one hundred sixty acres was variously put between $1,400 and $6,000.
Defendants say the judgment should be reversed with directions to enter judgment for defendants on each count. However, under the evidence, plaintiff may be able to protect the debt, and justice may be better served if the judgment be reversed and the cause be remanded with plaintiff permitted to proceed as he may be advised; otherwise judgment to be entered in conformity herewith. [Consult Rissell v. St. Louis-S.F. Ry. Co.,
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.