72 Mo. 27 | Mo. | 1880
Lead Opinion
The questions presented by the record are: 1st, Was the right acquired by the wife by reason of her filing her statutory claim to the homestead, lost in consequence of the divorce she subsequently obtained ? 2nd, Even if such right was defeated and determined as to the wife, by the judgment which dissolved the marital
The law under which Alice Asher filed her claim, is as follows : “ The homestead of every housekeeper, or head of a family, consisting of a dwelling house and appurtenances, and the land used in connection therewith, * * shall, together with the rents, issues and products thereof, be exempt from attachment and execution, except as herein provided, * * and any married woman may file her claim to the tract or lot of land occupied or claimed by her and her husband, or by her, if abandoned by her husband, as her homestead; said claim shall set forth the tract or lot claimed, that she is the wife of the person in whose name the said tract or lot appears of rec
The judgment upon which plaintiffs rely, was rendered against Lewis Asher March 12th, 1873, the execution issued and levied two days thereafter, and the sale occurred September 1st of that year. Prior to that sale, August 23rd, 1873, the then wife had filed her claim to the homestead. She obtained a judgment of divorce at the September term, 1875. Lewis Asher, her husband, left her August 11th, 1872, and returned but once, and that was about three years before the trial of this cause, at the September term, 1876. The place claimed by Alice Asher had been occupied and resided on by herself, husband and family of children, as a home, from 1864 up to the time he left; and since that time she and her minor children had continued thus to reside on and occupy it; and she was in fact, if not in law, the head of the family.
The above being, then, the facts in this case, the question proposed at the outset recurs : Did the wife by the exercise of her statutory right to obtain a divorce, lose her previously acquired statutory right to her homestead? In the State v. Pitts, 51 Mo. 133, it was said : “ The legislature in the provisions of the law respecting homesteads uses the broadest language and exempts from attachment and execution, the homestead in all cases, except as therein provided.” And so it was held in that case, that though
It is to be observed, that while the statute under consideration is careful to provide a way whereby a woman, abandoned by her husband, may gain a homestead, that statute nowhere provides any means whereby the homestead thus gained shall be forfeited and lost. And who shall gainsay the statute? The rule of the statute is the exemption of the homestead ; and that exemption prevails, “ except as therein provided.” State v. Pitts, supra. By the express terms of the statute, after the wife’s claim is filed, the husband is “ debarred from and incapable of selling, mortgaging or alienating the homestead in any manner whatever; and every such sale, mortgage or alienation is hereby declared null and void.” And the only exception to the entire inalienability- of the wife’s homestead, thus acquired, is that provided by a subsequent clause of the same section, where, by her own voluntary act, she may join with her husband in conveying such homestead. Under a somewhat similar statute in Illinois, where the amendatory act of 1857 prohibited alienation by the husband without the concurrence of the wife, it was held that the statute created a homestead exemption in her, as against the creditors of the husband and his alienees. Turner v. Bennett 70 Ill. 263.
But it is said that the section above quoted “is designed for the benefit of abandoned wives, not divorced wives.” This position, though plausible and ingenious, is untenable; and it is untenable for this reason, if no other;
The reason of the law is said to be the life of the law. If the homestead act is especially designed for the protection of the wife and children, how does the reason for their protection cease, because the wife is separated from her husband by divorce instead of by death? And how is the necessity for that protection diminished, because the fact of abandonment gives simultaneous origin to the right of homestead and the right of divorce? The same law which gives the deserted wife the right of homestead, confers on
I concede that the 1st section of the amendatory act of 1873, above quoted, does not say that on the filing of •the wife’s claim the homestead shall “pass to and vest in ” the wife, as does the 5th section of the original act in regard to the widow, but language tantamount to that, in its practical effect’as against the husband, his alienees and creditors, is employed (Turner v. Bennett, supra), language much broader than that of the Illinois statute, language which confers on the abandoned wife the affirmative right of making claim for a homestead, and then, after the claim is made and the homestead is secured, exempts that homestead from “attachment and execution,” and pointedly prohibits its alienation “ in any manner whatever” by the husband.
I have been able to find no adjudicated case precisely like this one in all its features, but have found two, which in principle, support the views here expressed. In. Sellon v. Reed, 5 Biss. 125, a wife in the possession of premises as her home, filed her bill for and obtained a divorce from her husband, the decree awarding to her the custody of her minor children, as well as alimony. The only defense set up to the ejectment brought by the alienee of the husband, was a right of possession under the homestead act, and such defense was held good, Blodgett, J., remarking: “Following the spirit of the adjudications, so far as made by the courts of this State, I think the defense set up is
In Bonnell v. Smith, 53 Ill. 375, it was held that where the wife of a party having a homestead right, obtained a divorce from him, she being the meritorious cause thereof,
I am unable to distinguish this case in point of principle from those I have just cited. It is true that in the present instance it does not appear that the children were awarded, by the judgment of divorce to the custody of their mother, but I cannot regard this as materially affecting her homestead right. She was, to all intents and purposes in fact, if not in law, the head of the family, and entitled to all the benign protection which the homestead act was designed to confer.
Guided by the foregoing reasons and authorities, I am of the opinion that the divorce of the wife did not alter her status so far as concerns her homestead right; that by filing her claim, that right became fixed and absolute, as against her husband aud his creditors; a right which neither the decree of divorce, nor a judicial sale could alter, take away or lessen. And it may be remarked in conclusion of the point in hand, that I should take the same view, whether I construed the statute in question liberally or otherwise. A liberal construction would certainly tend to the conclusion announced, but if it be true that the creditor, as well as the debtor, has no rights under the execution laws, except those conferred by those laws, then the same result will attend, at least so far as concerns the present case, a strict as well as a liberal construction of them.
So that it will be observed that even if the decree of divorce accomplished all that plaintiffs claim it did, even if it defeated or overthrew the wife’s right, and made her a mere trespasser and unwelcome intruder in her former home, still plaintiffs’ ease is not bettered thereby, because if that was the effect of the decree of divorce, a statement which I deny, inasmuch as no new homestead appears to have been gained by the husband, his old one will be presumed to continue, in which event, plaintiffs certainly could not eject the children of the husband and father, Lewis Asher, without making him a party defendant to the ac
3 Homestead: ejectment. Notwithstanding the conclusions already announced? the judgment must be reversed, because the testimony sir owed that the land claim ed by Alice Asher exceeded in value the statutory limit, and the declaration of law given on her behalf ignored the question of value. Judgment reversed and cause remanded. Napton and Norton, JJ., concur; Hough and Henry, JJ.? are not of opinion that the former wife is entitled to a homestead.
Dissenting Opinion
Dissenting. — In Illinois, and perhaps elsewhere, it is provided by statute that the court which grants a divorce shall dispose of the homestead estate according to the equities of the case. Acts of Ill. 1871-2, p. 478, § 6. No court in this State is invested with any such authority. Our homestead act provides for the wife, and continues in her, in the event she should become a widow? the right so acquired and held by her as wife. But it makes no provision whatever for women who have been divorced. Brown v. Brown, 68 Mo. 396. It is said, however, in the opinion of the majority, that the statute makes no distinction between an “ abandoned wife” and a “divorced wife.” There is no such person known to the law as a “ divorced wife.” The phrase is a solecism. When a woman is divorced, she is no longer a wife, and cannot be the widow of the person from whom she is divorced. Dobson v. Butler, 17 Mo. 87. Such a person, therefore, cannot claim the benefit of the provisions made by the homestead law for wives and widows.
The position is also impliedly assumed, that as the statute gave Mrs. Asher a right to a homestead, and also gave her a right to a divorce, the exercise of her statutory right to obtain a divorce could not divest her of her statutory right to a homestead. As well might it be said that as the statute gives the wife a right to a homestead, and a