165 Mo. 25 | Mo. | 1901
Ejectment for land in Texas county. Plaintiff claims under sheriff’s deed conveying the land sold under execution on judgment in favor of Barton Brothers against defendant. Defendant claims that the land was his homestead and exempt for execution.
The only que.-^pn presented on this appeal is, was the
Our statute (sec. 5441, R. S. 1889, same see. 3622, R. S. 1899) expressly renders the homestead subject to attachment and execution upon causes of action existing at the time of the acquiring such homestead except as therein otherwise provided, “and 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.
It is not disputed that the defendant acquired a homestead in .the 160 acres, but it is denied that he acquired it before the cause of action existed on which the judgment in this instance was founded. The evidence shows that the debt accrued in the summer of 1894, but it took the form of a note dated March 8, 1895. It is immaterial for the crucial point in this case which of those dates be taken: March 8, 1895, will serve the plaintiff’s claim as well as the earlier date. If, in tire sense of the statute quoted, the date of filing his title deeds for record by the defendant is to be taken as the date of his acquiring the homestead right, then that date, which was 1890 or 1891, was long prior to the debt on which the judgment Avas founded. And on the other hand, if the date of acquiring the homestead right was the date of his beginning to occupy the land as a homestead, which was in April, 1895, or, if it was to date from the time Holden reconveyed the land to him, which was September 13, 1895, then it was after the debt accrued. The date of filing the Holden deeds for record does not seem to be given in the abstract before us, but that does not impair the defendant’s claim here, because the deeds if recorded at all must have been after their date, September 13, 1895.
Before the defendant gave up his residence in the town of Mountain View and before he began to move to the land in question with a view of making it his place of residence, that is, on March 20, 1895, he conveyed the title to the land
A distinguished text-writer- on this subject has said that a homestead right may be had in an equitable estate. [Thompson on Homesteads, sec. 170.] And we see no reason to question that proposition. We have held that a homestead may exist in an equity of redemption. [State ex rel. v. Mason, 88 Mo. 222; Meyer v. Nickerson, 101 Mo. 184.]
The same learned text-writer comments on the clause of our statute now under discussion, and pronounces it unwise, leading to unjust results. In that connection he says: “On the other hand, suppose a person buys land, records the deed of purchase, and does not occupy the land for several years, dming which time he contracts debts — can he, by occupying the premises as a homestead, before attachment or judgment, hold the creditors at arms length ?” The hypothetical case there-propounded is the very ease we have now for decision. The author answers his question thus: “Hnless the courts graft exceptions upon the statute he can; for it affords no room for construction.”
We are not favored with a brief in this case on the part of respondent and therefore we do not know what his position was in the trial court, nor on what point the case there turned, but we presume it was the point above mentioned.
Nothing here said is in conflict with the previous rulings of this court. Language is used in some of our former decisions to the effect that the date of filing the deed is the date at which the homestead right is to be regarded as having been acquired, but in those cases the judgment debtor had been in occupancy of the land as a homestead before he filed his deed for record and was seeking to carry his exemption back to the beginning of his occupancy, but the judgment was that he could not go back of the date of filing his deed for record. [Shindler v. Givens, 63 Mo. 394; Tennant v. Pruitt, 94 Mo. 145; Payne v. Fraley, 165 Mo. 191.]
The vital facts in the case are these: the debt on which the judgment was rendered, for the satisfaction of which the sheriff’s sale was made, was contracted in the summer of 1894; ■at that time, and until April, 1895, the defendant resided in the town of Mountain View, had a home and a homestead there; he owned the land in question in this suit and his title deeds thereto had been on record since 1891, but he had never lived on it; in April, 1895, he moved on this land and made it his home. Under these facts we hold that he did not ac'■quire a homestead in the land until April, 1895, and therefore, it was not exempt from the execution in question.
The plaintiff should have had a judgment for the 160 .acres contained in the deed from Holden to defendant, dated
The judgment is reversed and the cause remanded to the circuit court of Texas county to be retried according to the law as herein laid down.