86 Mo. 630 | Mo. | 1885
— This was ejectment for some six hundred acres of land. Greenville Crisp, plaintiff’s husband, owned and resided on the land prior to 1861. In that year he went to the state of Texas, evidently designing to return as soon as he could with safety. He died there on the twentieth of December, 1865,
While the debts, to pay which these lands were sold, were the debts of the plaintiff, still she had a life estate in all of these lands. She was the head of a family, resided on the property, and was clearly, entitled to a homestead under the first section of vthe act of 1865 (GK S., 1865, 648). That section exempts such homestead from attachment and execution. The • second section gave her the right to designate and choose the part to which the exemptions should apply, and upon such designation and choice, or, in case of a refusal to designate or choose, it became the duty of the sheriff to appoint appraisers to set apart the homestead. This he failed to do.
While it was the duty of the officer to inform her of her right, and to have the homestead set off, whether she asked it or not, still does his failure so to do render the sale void? It must be conceded the authorities are not in entire harmony. Many of the cases relied upon by the plaintiff in error can hardly be regarded as having much bearing upon this question. It was held, in
But two cases decided by this court, Vogler v. Montgomery et al., 54 Mo. 578, and Perkins v. Quigley, 62 Mo. 498, have any bearing upon the question now presented. In the first, it does not appear that the property was in excess of the exemption, either in quantity or value. In the second, it does not appear that the amount was less than one hundred and sixty acres. These cases are by no means decisive .of the one at bar,
This property was, as we have seen, sold in 1871. Possession, it would seem, was yielded up to those claiming under the execution sale, except sixty acres which the plaintiff held by a different title, and of which the defendant was not in possession. For nearly ten years the defendant’s title has not been questioned, and since his purchase he has made some improvements on the land. Both the sheriff and the plaintiff have acted in total ignorance of her rights. The circuit court was clearly right in holding that she was not estopped from demanding her exemption, and correctly held that the sheriff’s deed was not void. • The homestead law was designed to protect children, as well as the head of the family. This should not be .left out of view in the administration of the law. But it does not follow that this deed should be held to be void. To so hold, would be unjust and unreasonable, and a fair administration of the law does not demand it. A most liberal assignment was made in this, case, and of which no complaint is or could rightfully be made. No question is made as to the propriety of the assignment of the homestead in this proceeding.
The judgment of the circuit court is affirmed.