Gilbert Balance, an ex-slave, died full of years and testate on the 1st of August, 1898, in the city of California, seized of lots 25 and 26 in Gri-ner’s Addition and leaving a widow, Dolly, and children — one of them, a minor daughter Ollie, the plaintiff. Gilbert, by his will duly probated, devised the lots to Dolly during her life- and after her death to plaintiff. Defendants having taken possession of the lots in April, 1908, plaintiff presently sued to determine and adjudge title, averring in her petition facts sufficient to invoke old section 650 and (inter alia) that the lots were the homestead of Gilbert for many years before and at his death.
By answer, defendants admit Gilbert died as alleged, leaving a will with the provisions alleged; averring that they, defendants, took and held possession; averring- they claim as owners, and denying plaintiff has any interest; averring that Gilbert acquired title by' deed on the 22d day of November, 1893; that thereafter in October, 1894, he executed a note for forty dollars “in settlement of a debt which he then owed the said Taylor and which he ha,d owed for a long'time;” that the note was not paid; that one Hardy was appointed and qualified as administrator of Gilbert’s estate; that the Taylor note was allowed against the estate by the judgment of the probate court; that, other than the lots, there was.no property to pay the note or costs of administration; that the lots were ordered sold by the probate court and were sold to pay the Taylor debt and said costs; that defendants as the highest and best bidders purchased at that sale for forty dollars and received an administrator’s deed; that afterwards in 1902 they acquired the widow’s interest by deed; wherefore by said conveyances they became sole owners of the lots. In conclusion the answer prayed title be adjudged in defendants.
{Note-. In one clause the answer sets up title through a deed under a tax proceeding and mesne con-
By replication plaintiff reasserts the claim in her petition and next avers that the Taylor debt was not legally charged against the homestead of Gilbert Balance in his lifetime and that the probate proceedings whereby a sale of the homestead - was attempted by the administrator were'in the teeth of the statutes and void.
The court adjudged title in plaintiff subject to the life estate of Dolly, the widow (now held by defendants) ; and defendants appeal.
In addition to the admission in the pleadings, the facts are that the lots were Gilbert’s homestead in 1893 and on up to the time of his death. On October 27,1894, he executed a due bill to one Taylor for forty dollars payable one day after date. He paid on the same $27.60. On December 1, 1900, the duebill was allowed in the probate court against his estate in the sum of $21.75 and the lots were sold by proceedings in that court to pay that allowance and costs of administration, defendants becoming the purchasers, and ^afterwards by quitclaim deed getting the widow’s title. Said deed refers to the widow’s interest, thus: “my interest being a life estate.”
There was no evidence tending to prove the allegation of the answer that the Taylor note was given in settlement of a debt which Gilbert owed Taylor “for a long time” or for any time prior to the date of the note. There is no direct evidence when Gilbert’s deed to his homestead was recorded.
I. There are some general guiding propositions it is not amiss to invoke by way of foreword.
(b) Second: The difficulties incident to the exposition of our several homestead statutes, as abundantly shown by appellate cases, have been so prevalent and acute as to lead to dicta afterwards repudi
Giving heed to the foregoing, we come to a closer view of the case.
II. Something in said of the tenor and effect that the record does not disclose the date of record of the homestead deed. The point is, we suppose, that under Sec. 6711, R. S. 1909 (in force at the time of the administrator’s sale), a method is pointed out for ascertaining what homesteads shall he subject to attachment and levy of execution, it being provided by that section that a homestead should be subject to attachment and levy upon all causes of action existing at the time of acquiring the homestead, and,- further, that “for this purpose such time shall be the date of the filing in the proper office for the records of deeds, the •deed of such homestead,” etc. Given that provision In that section, is it to be read into the section relating to vesting homesteads in widows and minor children? In passing we call attention to the fact that there is a well marked distinction between the quality of a mere exemption privilege in the householder and the estate vesting in his widow and minor children. [Brewington v. Brewington, supra.]
As said, section 6711 pertains to attachment and levy of execution. Now, no attachment ,or levy of execution runs against a dead man’s estate. Hence the section does not on its face, at least, pertain to the vesting of a homestead .in a widow or minor children or the acquisition of a homestead for such purpose. That is provided for, to-wit, in' Sec. 6709, R. S. 1909 (the provisions of which, pertinent here, were in ex
But there is another view heading to the same result. In appellants’ answer it is admitted Gilbert Balance acquired title by a deed in 1893. With that admission in the case, and not controverted, would it not be presumed that the deed was put of record presently? That is the usual course — the course contemplated by the statute and dictated by due care and prudence. Presumptively the usual course was taken, absent proof to the contrary. We inquire: What avail would it be to reverse this judgment on this narrow point, only to be confronted on retrial with the fact the deed was promptly recorded, as we have not a particle of doubt was the case? Indeed, the very allegations in the answer relating to the execution of the deed and its date argue persuasively, that appellants got those facts from the records, the receptacle provided by the law for such information on titles.
Furthermore, defendants’ answer is obviously drawn on the theory that a homestead existed and was operative to defeat the administrator’s deed unless affirmative matter, pleaded therein, was effective (when proved) to sustain the administrator’s deed. That affirmative matter is outlined in the allegation that Taylor’s debt existed so long before the date of
III. In putting in their proof, defendants failed to sustain the allegation in their answer, meaning in effect that the Taylor debt antedated the acquisition of the homestead. Does the order of sale in the probate court supply presumptive proof of that fact? In other words: Will it he presumed in aid of defendants ’ effort to defeat a homestead right, that the pro-hate court would not have ordered the sale unless the fact was as suggested in the answer? It was early established that a creditor who through legal process laid his hands on a homestead and sold it to pay his debt could only validate his act by carrying the burden of showing that the debt was older than the homestead right. [Rogers v. Marsh,
As appellants threw off the burden put upon them by the law, we can not hold that Gilbert’s homestead was acquired after the cause of action on the Taylor debt existed.
IY. There is left one other feature of appellants ’ brief, viz: It is suggested that as Gilbert died after the amendment of the homestead act in 1895, but acquired his homestead, and the Taylor debt accrued, while the amendment of 1875 was in force, the creditor had a vested right in the remedy as that remedy was
In two cases it was ruled that the creditor had no such remedy under that act so long as homestead rights exist. [Broyles v. Cox,
“Per Curiam. — This case was sent by Division Two of its own motion to Court in Banc, because of its apparent conflict with some observations in the opinions of the court in Broyles v. Cox,153 Mo. 242 , and In re Powell’s Estate,157 Mo. 151 .
“The facts which form the basis of this action occurred while the homestead law of 1875 was in force, and the case is of course governed by that law, while the facts which form the basis of the cases of*129 Broyles v. Cos, and In re Powell’s Estate, snpra, bring them within the provisions of the homestead law of 1875, 1879 and 1889, as amended by the Act of 1895, and in so far as the questions really involved in those cases are concerned, they are not in conflict with the case at bar, bnt the rulings in those cases to the effect that the homestead of a deceased housekeeper or head of a family, within the statutory size and limits, can not be sold under the homestead law of 1875, by an order of the probate court of the proper county, for the payment of the debts allowed against the estate of the deceased, subject to the homestead rights of the widow and minor children, are disapproved. With these suggestions, the foregoing opinion of Burgess, J., in Division Two is approved, and adopted by the Court in Banc.”
The significance of that per curiam will be at once seen by comparing the statute of 1875 with that of 1895, and marking the alteration in the law. In 1875 the statute was made to read (and continued to read until 1895) as follows (R. S. 1879, Sec. 2693):
“If any such housekeeper or head of a family ¡shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and .vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall .attain its legal majority, and until the death of such widow, and such homestead shall, upon the death of .such housekeeper or head of a-family, be limited to that period. But all the right, title and interest of the deceased housekeeper or head of a family in the premises, except the estate of the homestead thus continued, shall be subject to the laws relating to devise, descent, dower, partition and sale for the payment of*130 debts against the estate of the deceased, and the probate court having jurisdiction of the estate of the deceased housekeeper or head of a family shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.”
In 1895 the foregoing section was, ■ by amendment, made to read as follows (R. S. 1899, Sec. 3620):
“If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless, legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until they shall arrive-respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage-it shall pass to the heirs of the husband; and the-probate court having jurisdiction of the estate of the-deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons' entitled thereto.”
It will thus be seen that after this court had held under the'Act of 1875 that the homestead might be sold subject to the homestead rights of. the widow and minor children, the lawmaker’s attention was called to the great sacrifice that would result in such form of sale (vide, Showers v. Robinson, 43 Mich. l. c. 508) and accordingly eliminated that part of the statute which this court had held authorized such sale by an administrator, and the question is whether a creditor has such vested right in that particular form of rem
We have held that homestead rights vest in the widow and minor children on the death of the householder, or head of a family, and not before. That up to that time the wife of the householder had no vested right under any particular once existent hut now nonexistent amendment of the homestead law. Nor had the householder such vested right when called on to claim his exemption privilege. [Bushnell v. Loomis,
It is needless to say we are not dealing with the right of a creditor whose debt existed before any homestead act was passed. We are dealing with a creditor that became such after a homestead law withdrew the homestead from the list of debt-paying assets, but gave a remedy in given conditions on his. debtor’s death against his debtor’s estate, and then, took the remedy away for reasons well grounded in¡ public policy.
It results from the premises that the judgment must be affirmed. It is so ordered. All concur. .