185 Mo. 509 | Mo. | 1904
This is an appeal from a decree-of the circuit court of Barry county setting aside a certain conveyance of lands in said county to defendant Elizabeth Evans,, on the ground that the same was. in fraud of the creditors of her husband and codefendant Martin Evans, and subjecting the same to the payment of plaintiff’s demand against said husband.
The petition, it is agreed, stated in substance that Martin Evans, one of the defendants herein, was indebted to plaintiff in a large sum of money on a certain-promissory note given for a reaping machine on or about the 14th day of November, 1894; that on the 17th of October, 1899, said Martin Evans purchased of one-.Frank Ball the real estate involved in this suit, lying- and being in Barry county, and caused the title to the-same to be placed in the name of his wife and co defendant Elizabeth Evans, for the purpose of covering-up and concealing his said property, and to hinder, delay and defraud his creditors in the collection of' their debts; that said Martin paid the whole of the-consideration for said lands, and that said consideration was not the proceeds of a former homestead, etc.
The answer is as follows:
“Now on this day come defendants, and for answer to plaintiff’s petition deny each and every allegation therein contained, except what is herein specifically admitted.
“Defendants, further answering, state that on the-14th day of November, 1894, and for a long time prior thereto, defendant Martin Evans was a married man and the head of a family, and was on said 14th day of November, 1894, and for a number of years prior-thereto, the owner of, seized and possessed of eighty acres of land situated in the county of Newton and State of Missouri, which he used and occupied as his. homestead with his family; that said land was less than fifteen hundred dollars in value and that the deed therefor was in the name of defendant Martin
“Defendants further state that the said Martin Evans and wife by their certain deed of conveyance, on the---day of--- 1898, conveyed1 said Newton county lands to one "Win. Meredith, receiving in exchange therefor and in payment thereof eighty acres of land in the county of Johnson in the State of Arkansas- of less value than fifteen hundred dollars, the deed therefor being taken in the name of defendant Martin Evans; that said Martin Evans continued to own said Arkansas land until the 17th day of Oct-., ■ober, 1899, when he conveyed the same by deed, duly executed by himself and wife, to one Ball, and received in exchange therefor and in payment thereof the lands described in plaintiff’s petition herein; that defendant Martin Evans caused the lands in controversy to be •conveyed to his codefendant, Elizabeth J. Evans, which deed was signed, executed and delivered to her by said Ball on the 17th day of 'October, 1899, at the request •of defendant Martin Evans.
“Defendants are now and were at all of the times herein mentioned husband and wife. Defendants further state that they were residents of and resided in the State of Missouri at all of the times above mentioned, and continued to reside in the State of Missouri until the---day of December, 1899.
“Defendants further state that Martin Evans became indebted to plaintiff on the 14th day of November, 1894, for the purchase price of a reapingmachinesoldto him on said date by plaintiff, as is evidenced by his certain promissory note filed in the attachment suit of D. M. Osborne & Co., plaintiff, against Martin Evans, defendant, in the circuit court of Barry county, Missouri, returnable to the April term, 1900, of said court.
“Wherefore defendants pray the court that they
The replication was a denial of all new matter alleged in the answer. The cause was submitted to the circuit court upon the following agreed statement of facts, omitting caption, etc.-:
“For the purpose of avoiding the bringing of witnesses to court it is hereby agreed that the facts involved in the litigation in the above-entitled cause of action are ás follows:
“1st. That on the 14th day of November, 1894, and for a long time prior thereto, defendant Martin Evans was a married man and the head of‘a family and was on said 14th day of November, 1894, and for -years prior thereto, the owner of and was seized and possessed of eighty acres of land inNewton county, Missouri, which he used, possessed and' occupied as his homestead; that said land was of the value of less than fifteen hundred dollars, and- that the deeds’ therefor were in the name of Martin Evans and were duly’filed and recorded in the office of the recorder of deeds for Newton county, some years prior to the said 14th day of November, 1894.
. •£ £ 2nd. That said Martin Evans and wife by their deed on the---day of---189 — , conveyed said Newton county lands to one ¥m. Meredith, receiving in exchange therefor and in payment thereof, 80 acres of land in the county of Johnson, in the State of Arkansas, of less than the value of fifteen hundred dollars, the deed therefor being taken in the name of Martin Evans, and that said Martin Evans Continued to own said Arkansas lands until the 17th day of October, 1899, when he transferred the same by deed to one Ball, and received in exchange thereof and in payment therefor the lands described in plaintiff’s petition and located in Barry county, Missouri. That the deed which bears date and was executed and filed on October 17, 1899,
“3rd. That defendants were residents of and resided in the State of Missouri at all of the times above mentioned and continued to reside in Missouri until the---day of December, 1899'.
“4th. That defendants nor neither of them ever lived on or occupied the Arkansas lands or the lands in controversy.
‘ ‘ 5th. That defendant Martin Evans became indebted to plaintiff on November 14,1894, for a machine purchased of plaintiff on that date secured by a certain promissory note filed in the suit of D. M. Osborne & Co. against Martin Evans in attachment in the circuit court of Barry county, Missouri, returnable to the April term thereof, 1900.
“6th. It is agreed that this agreement may be read in evidence in the trial of the above-entitled cause.
“7th. That at the date of the filing of the attachment of D. M. Osborne & Co. v. Martin Evans and at the date of the filing suit herein, defendants were living in the State of Kansas.
“It is hereby ag’reed that the above stipulation and agreement may be read in evidence in the trial of the case of Elizabeth J. Evans, plaintiff, against D. M. Osborne & Co., defendant, now pending in' the circuit court of Barry county, Missouri.”
I. From the agreed statement of facts it is at once apparent that the defendants do not bring themselves within the letter or spirit of section 3623, Revised Statutes 1899, by which it is provided that, “Whenever such housekeeper or head of a family shall acquire another homestead in the manner provided in section 3622,- the prior homestead shall thereupon be
It is agreed in this case that the Barry county land was obtained by defendants by an exchange of defendant Martin Evans’s land in Arkansas which had never been occupied by him and his family as a homestead, and that he and his family have never occupied the Barry county land in suit as a homestead, and was not so occupied when the attachment suit, in aid of which this suit was brought, was commenced.
The right to a homestead exempt from attachment and execution is purely the creature of statute.
By our statute this exemption begins with the filing of the deed for record as to all debts thereafter incurred, but such an estate is subject to attachment and levy of execution upon all causes of action existing at the time of the acquiring of such homestead. [Sec. 3622, E. S. 1899.]
It is plain, we think, that our statutes only exempt the homestead,■ and the proceeds thereof invested in another homestead, and not the proceeds thereof invested in property not acquired for a homestead. The contention of defendant goes too far. It would exempt the proceeds if invested in cattle or horses or merchandise. There is no warrant in the homestead act for such a construction. It is true the homestead is not
We do not think the doctrine of abandonment has any place in this discussion. The defendant Martin Evans had an undisputed right to sell and convey his Newton county homestead. It was.not subject to attachment or execution for this debt created after he had lawfully acquired that homestead, and the plaintiff herein could not have subjected that land to attachment or execution for its debt in the hands of his ■ vendee. If the consideration received for that homestead had been invested in another homestead in Missouri it also would have been exempt, but when instead of acquiring another homestead, he invested the consideration in Arkansas land which he never occupied as a homestead and then exchanged that for the Barry county land and caused it to be deeded to his wife
The General Assembly have granted an exemption of a homestead for the benefit of the family, but have not made the proceeds invested in wild lands, or lands not occupied as a homestead, or in personal property, exempt from the debts of the owner of the homestead. [Peninsular Stove Co. v. Roark, 94 Iowa 560; Smith v. Gore, 23 Kan. 488.]
As to plaintiff’s prior and existing debt the voluntary conveyance of the Barry county land to the wife without any consideration was void and the decree of the circuit court was correct and it is affirmed.