22 Mo. App. 466 | Mo. Ct. App. | 1886
It will be observed, from the statement in this cause, that the judgment, upon which this equitable action is based, was against one Prank Campbell, who received from one Pogerberg and wife an instrument purporting to be a deed to the property now sought to be charged in the hands of defendant. That this instrument had no seal affixed thereto, and that, instead of being made to' Campbell as grantee, it was, by clerical error, made to Oampbliss.
This instrument was dated February 16, 1882, and was filed for record March 23, 1882. That on June —-, 1882, Pogerberg, for the purpose of “satisfaction of the deed to Prank Campbliss,” made a proper deed, duly sealed and acknowledged, to Campbell, which was recorded September 20, 1882.
That all the debt, except one item, for which the judgment was rendered, existed prior to March 23, 1882, the time when, what is claimed as Campbell’s first deed, was recorded.
That the judgment against Campbell was rendered December 16, 1882, a transcript of which was filed in the
I. Preliminary to a consideration of this question of homestead, defendant insists that plaintiff has no remedy in equity, and, therefore, cannot maintain this action. This contention is tantamount to denying plaintiff any remedy whatever. For the defendant in the judgment being dead, no execution can issue. Hardin v. McCause et al., 53 Mo. 255; Wernecke v. Wood, Adm'r, 58 Mo. 352; Wernecke v. Kenyon, 66 Mo. 275. If the land was not Campbell’s homestead, plaintiff’s judgment was a lien upon it and this lien cannot be enforced in the probate court.
The estate of Campbell has no interest in the land, since it was conveyed in the lifetime of the intestate (Zoll v. Soper, 75 Mo. 460); and such conveyance cannot be questioned by an administrator of such grantor’s estate, nor by his heirs. Ib.
It is perfectly clear that unless plaintiff can enforce the lien of his judgment by the interposition of a court of equity he is without remedy. That he can have relief in equity we regard as settled by the adjudication of the supreme court of this state. Almet v. Leper, 48 Mo. 319.
In all such cases however he must have exhausted his legal remedies, and for this purpose must show himself to be in suoh position that he could properly have .taken advantage of his legal rights. As in cases of this nature he should ordinarily show an allowance of his claim against the estate of Campbell by the probate court. In this case, however, the correctness of the. judgment is conceded, and it is admitted that Campbell died, leaving no estate whatever, of any kind or description. An administration, then, would have been useless and the presentation and allowance of this judgment by the
II. By section 2695, Revised Statutes, the homestead shall be liable for all debts existing at the time of acquiring the homestead, and the homestead, for this purpose, shall be deemed to have been acquired at the date of filing the deed thereto in the recorder’s office.
The question, then, is, when was Campbell’s deed to this land filed with the recorder; on March 23, 1882, when he filed the unsealed instrument to Frank Camp-bliss, or on September 20, 1882, when he filed a proper deed to himself %
A construction of the homestead law is now without its difficulties, and this section has been frequently criticised, Judge Nap ton saying that its phraseology is sing “ularly unhappy.” Faira et al. v. Quigly, 57 Mo. 287. “The evident object of this section, so far as it bears on the subject matter of the present controversy, was to establish an unalterable criterion, to govern in all cases where disputes should arise as to the period when the homestead was acquired. That period, as definitely settled by statutory enactment, is “the date of the filing in the proper office, etc., the deed of such homestead.” Shindler et al. v. Givens et al., 63 Mo. 394.
In order, then, to protect a homestead from debt there must not only be a deed to the claimant, but it must be duly filed for record. If one has a good and sufficient deed to his homestead, but which has not been filed for record, he cannot claim it as exempt from an execution, though the execution plaintiff knew of his ownership' and of the deed, at the time the debt was contracted. So, if one has a contract for the purchase of land, a title bond, or the like, he cannot, under the
In the case before us the instrument filed for record March 23, 1882, was unsealed, and was, therefore, not a deed. “A deed, under all circumstances, implies and requires á seal; and without something answering to a seal, according to the law of the state where the land lies, it cannot be a deed.” 3 Washburn Real Property, 259. It follows, then, that Frank Campbell only acquired the homestead, upon which this lien is sought to be enforced, for the purpose of claiming an exemption under execution for debt, on September 20, 1882, the date of the filing of the deed from Fogerberg to him.
The result is, we reverse the judgment and remand the cause.