Holland v. Kreider

86 Mo. 59 | Mo. | 1885

Norton, J.

— This is an ejectment suit to recover the possession of certain lands in Greene county, described in the petition. On the trial, defendant recovered judgment, from which the plaintiff has appealed. The evidence in the case shows that J. O. Franklin was the-common source of title, and occupied the land as a homestead, from 1863, till he sold it to defendant, in September, 1879; that on the twelfth of May, 1879, judgment was rendered in the Greene county circuit court in favor of C. B. Holland et al. v. J. C. Franklin et al. ; that on the-twenty-seventh of September, 1879, J. C. Franklin and wife conveyed the said land, occupied as a homestead, to-defendant Kreider, by deed of general warranty, which was duly recorded September 29, 1879; that after this-sale, execution, which issued on said judgment against said Franklin, was levied on said land, and it was sold, plaintiff becoming the purchaser, and receiving a sheriff’s-deed therefor, dated January 23, 1880, which was filed for record February 28, 1879.

On this state of facts the court gave the following instruction:

“That a homestead, to the extent of one hundred1 and sixty acres, and not to exceed the value of $1,500, is exempt from execution where the debt sued on is created subsequent to the acquiring of the homestead; and if J. O. Franklin owned and occupied the land sued for in this action, as his homestead, at the time the debt upon which plaintiff obtained judgment was made, and continued to own and occupy said land, as his homestead, Tmt.il he sold the same to defendant Kreider, then the title' passed to said defendant, and was not subject to plaintiff’s execution, and plaintiff cannot recover in this action.”

The court refused to give declarations of law asked by plaintiff, asserting his right to recover on the sheriff’s .deed, under the facts in evidence.

The instruction given by the court was fully warranted by the ruling of this court in the case of Beckmann v. Meyer, 75 Mo. 333. In that case, the father, being the owner of a homestead, conveyed it to his son for the consideration of $1,800. After this conveyance was made, the land was levied upon by an execution which issued on a judgment against the father ante-dating the sale to the son, and under this execution the land was sold. On •.this state of facts it was ruled that the . son would hold the land against the execution purchaser at such sale. -One of the grounds upon which the decision is based, is that the judgment did not create a lien on the homestead, .and it having been bought and paid for in good faith by defendant when it was free from judgment lien, the title acquired by the purcahser was unaffected by the execution sale, and this view of the case is sustained by the Michigan and Illinois cases referred to in the opinion, to which may be added the case of Danforth v. Beattie et al., 48 Vt. 138, where a mortgage of the homestead was held to be valid as against creditors, on the ground that the homestead was not attachable.

The decision was, also, put upon the ground that our statute recognizes the right to sell one homestead and purchase another with the proceeds. This view of the case is fully sustained by the Texas case, cited in the •opinion.

J udgment affirmed.

All concur.