135 Mo. App. 472 | Mo. Ct. App. | 1909
(after stating the facts). — -The right to attack the levy and sale at the return term of the writ of execution was settled by this court in the case of Finke v. Graig, 57 Mo. App. 393, on the authori
The proposition as to the judgment being void for the reason stated in the motion is untenable. Defendant was in court; whether he was served with a copy of the amended petition or not, or whether there were other irregularities connected with the rendition of the judgment, it was a final judgment, which would sustain an execution.
It is. also evident that the appellant had no right of homestead in the property in St. Francois county. He lived and had his home in Washington and not in St. Francois county. One cannot have a homestead in two counties at once, nor can he claim a homestead in property upon which neither he nor his family at the time resides. [St. Louis Brewing Association v. Howard, 150 Mo. 445.]
There was no testimony in the case as to the value of the lots levied upon and sold from which we can infer that they were sacrificed at a grossly inadequate price, therefore, the proposition of the appellant on this point is untenable. The claim of respondent, that the price brought at the sale is the measure of value, is not, however, correct under the facts in this case.
The substantial point for determination in this cause arises over the failure of the sheriff of St. Francois county, before levying upon the lots in his county, under the execution in his hands from the circuit court of Washington county, to apprise appellant, one of the
After a very careful consideration and examination of the cases in Avhich these sections (3162 and 3163) have been before our courts, we can come to no other conclusion than that it was the duty of the sheriff of St. Francois county to have apprised appellant of his rights under the law. Under these sections there is no discretion left in the officer into whose hands an execution comes. Whether that execution issued out of the court of his own county or from the court of another county of this State, section 3163 is explicit as to the duty of the officer. Section 3162 is equally clear in giving the right of selection to the defendant in any execution issued against him. We have found no case in which these sections have been held to be directory merely. When in disregard of them and of the law relating to homesteads, the homestead is sold, our courts have invariably held the sale void. See St. Louis Brewing Association v. Howard, supra, where at page 450, Judge Marshall has collated the cases bearing upon this proposition. See, further, Tapley v. Ogle, 162 Mo. 190. When the property outside of the homestead has been sold and the process of the court executed so that it is beyond the control of the court, and the property has gone into the hands of an innocent holder for value,
In State to use Reagan v. Romer et al., 44 Mo. 99, an action on a constable’s bond, the court held him liable because he had not notified defendant of his rights; the officer even refused to allow the debtor to avail himself of his exemptions after claiming them, and the court pronounced his act “wrongful, oppressive and contrary to the mandates of the statute.”
In State to use Conklin v. Barada et al., 57 Mo. 562, also a suit on a constable’s bond, the court held (l. c. 567) that it is the duty of the officer to apprise the defendant of his rights — “the whole subject-matter of the debtor’s protection seems committed to that officer, and none other is designated for any step in the process.”
See also State ex rel. Tilden v. Beamer, 73 Mo. 37, a suit on a sheriff’s bond.
In Paddock v. Lance, 94 Mo. 284, a suit in equity to set aside deeds, it is held to be the plain statutory duty of the officer to notify the defendant in the execution of his right of exemptions and selection under the sections of the statute referred to. See also Finley v. Barker, 110 Mo. 408; Chance v. Norris, 143 Mo. 235, and Hudson v. Wright, 204 Mo. 412. In this latter case, which did not involve a homestead, Judge Lamm says, at page 426, that the question under consideration is, “whether a failure on the part of the officer holding
In not one of the cases referred to is there the slightest suggestion that section 3163 is merely directory or that it lodges any discretion in the hands of the officer having the execution.
Much reliance is placed by counsel for respondent on a statement of the judge who delivered the opinion of the court in the case of St. Louis Brewing Association v. Howard, supra, where, at page 450, after referring to the fact that it is the duty of a sheriff, under what is now section 3163, Revised Statutes 1899, before he levies an execution, to apprise the defendant of the property exempt, and that if he levies upon a homestead without notifying the defendant, the sale will be void and will pass no title, the learned judge adds: “Still this will not help the defendant in this case, because, first, there was no property of the character specified in section 4902, 4903 and 4906,” (now section 3158, 3159 and 3162, R. S. 1899) “levied on under this execution, and there was therefore nothing of that character of property for defendant to claim as exempt, or to elect which should be sold first, as provided by section 4926; and, second, because the defendant clearly had no homestead right in this property.” An examination of this case will show that the real contention before the Supreme Court and in the lower court was over the claim which the defendant in the execution set up to what might be called a double homestead. In point of fact, an examination of the brief of counsel shows that this was the real contention and claim on the part of the defendant in the execution in that case and was directed solely
In the case at ban we have a direct attack on the levy; that attack made at the beginning of the return term of the execution, by appropriate motion, the same mode of proceeding as presented and pursued in Finke
So solicitous have our law-makers been in protecting the debtor and his family, that by section 3186, the defendant in an execution is given the right to elect what property shall be first sold.
In Garrett v. Wagner, 125 Mo. 450, l. c. 462, it is held that a claim of exemption must be made to avert a threatened seizure or levy, or to defeat a levy already made.
How is the defendant to either designate the property to be sold or to claim his exemptions, if not apprised of his rights by the officer holding the execution?
If it is claimed that the notice given by respondent, of the issue of the execution to St. Francois county, cured the omission of the sheriff, the answer is, that our statutes require both the notice from the execution creditor and the apprisal by the sheriff. One is not a substitute for the other; both must be given. To avoid any misconception on this latter observation, we remark that we do not mean to hold in this case or on this matter, that the sheriff must apprise the debtor in the execution of his right by a written notice — but he must, in some clear and explicit mode and manner, apprise him of bis right.
In Payne v. Fraley, 165 Mo. 191, it is said by the court (l. c. 196), that while “a liberal interpretation is always to be indulged in construing statutes of exemp
These sections of our statutes relating to executions and exemptions are all carefully drawn and are enacted for the benefit of the unfortunate debtor and his family. They will not be construed away by the courts and they should not be rendered abortive and useless by the urgency of creditors or the carelessness of officials, on the latter of whom they impose an important duty, the faithful performance of which is within, not alone the terms of their bond, but their solemn oath of office.
The action of the lower court in overruling, the motion was error and the cause is reversed and remanded for further proceedings in the circuit court, in accordance with this opinion.