23 Mo. App. 641 | Mo. Ct. App. | 1886
delivered the opinion of the court.
The petition states in substance that the plaintiff obtained a judgment against the defendant for $2001.36 and caused an execution to be issued thereon, which, together with a prior execution in favor of one Sands against the defendant, was levied upon the defendant’s lands. That the defendant claiming a homestead exemption in the lands thus levied on, thesheriff appointed appraisers who set apart one hundred and thirty acres, as a homestead to the defendant, valuing such land at fifteen hundred dollars,, whereupon the plaintiff directed the sheriff not to proceed any further with the execution, but to return it, which the sheriff did. That the whole one hundred and thirty acres was worth $3,250, and are used as an entire farm, and a severance of any part thereof would greatly depreciate the value of the rest.
The plaintiff prays" judgment," setting aside ■ the appraisement, decreeing the sale of the premises, and
A demurrer interposed by the defendant to this petition being overruled, he filed his answer, setting up •among other the following facts, which the proof fully sustains, namely: That the plaintiff’s execution, together with the Sands execution, was levied on all the lands of the defendant. That, after the homestead was set apart to the defendant by the appraisers, the residue of the land was sold under the Sands execution, and the proceeds of the sale paid to Sands and the plaintiff, and ■credited on their respective executions. That the plaintiff made no other objection either to the sale, or to the ■setting apart of the one hundred and thirty acres as the defendant’s homestead, than telling the sheriff not to proceed further with his execution after the homestead was set apart. That the first exception that the plaintiff took to the report of the appraisers was when, at •a subsequent term of the court, he filed.the present petition. 4 •
It is obvious that, under these pleadings and proof 'the court was not authorized to vacate the appraisement made, and to appoint new appraisers, and that its doing so was manifest error. The petition seeks to- state a •case within the provisions of' section 2698, Revised Stat* utes, and the pleader evidently attempted to bring him•self within the rule established by this court in Schaeffer v. Beldsmeier (9 Mo. App. 439, 442), but has failed to do so. It was held in that case that if facts •stated in section 2698, are claimed to exist and do exist, the plaintiff may, either by motion in the original proceedings, or by petition as a substitute for such motion, ask the court to carry out the provisions of said section, and that the court may, under the last clause of that •section, make such orders in the premises as shall be equitable and needful, and thus carry into effect the equity of the statute.
The plaintiff’s petition is not in the nature of a bill to vacate the proceedings for fraud. No fraud is alleged, and the proof is clear that the first appraisers acted in good faith, and according to their best judgment. In fact if we had power so to do, and were to determine the question anew upon the proof preserved in the record, we could find no just ground on which to vacate the original appraisement.
All the judges concurring the judgment is reversed and the petition dismissed.