85 Mo. 413 | Mo. | 1885
This is an action of ejectment to recover possession of the southeast quarter of the northeast quarter and the northeast quarter of the southeast
The plaintiffs, it seems, are step-sons of the defendant. In October, 1880, they commenced a suit before a justice of the peace against the defendant on an account and recovered judgment for one hundred and two dollars; filed a transcript of the judgment in the office of the clerk of the circuit court, sued out execution therefrom and levied on the land in controversy ; bought it at that execution sale, and brought this suit for recovery of possession. To maintain the issues on their part, plaintiffs read in evidence the sheriff’s deed.
Defendant then introduced Edwin Leake, one of the plaintiffs, who testified as follows: “Defendantis my step-mother; the land in controversy was the property of my father at the time of his decease. He and defendant, his wife, resided upon it and occupied it as their home up to and during the war. About the time of-the close of the war, or just after, my father and family left on account of the perilous condition of the country, and went to Iowa, where he shortly afterward died. Defendant returned immediately and has lived on the land in controversy ever since. My father never bought land anywhere else. Defendant is about sixty-five years old.”
Mr. Sweat: “Defendant is my sister. She and her husband, now deceased, left the land in controversy about the close of the war on account of the unsettled condition of the country, as testified by plaintiff. Her husband died, seized of the land in controversy on the twenty-first day of April, 1866. Defendant, immediately after her husband’s death, returned to their former home, and has lived on the ¡¡land in controversy ever since. Her husband, before his death, nor has she since-acquired any other homestead. No children were born to them, nor has she ever had any. Defendant and myself constituted all the family Since the death of her husband.
The defendant then asked the following declaration of law: “The court declares the law to be that under the pleadings and evidence, the judgment must be for the defendant,” which the court refused.
There was some other evidence, which it is not important to notice, as it cuts no figure in the determination of the case. There was judgment for the plaintiff, from which the defendant appeals to this court.
I. The only important and controlling question in this case is, as to the exemption of the land under the homestead law. And it does not seem under the facts and circumstances of this case a solution of that question should be difficult. The evidence tends to -prove, and, indeed, there is no controversy about the facts, that the defendant’s husband was the owner of the land in 1866, and he and defendant, as' husband and wife, were then residing on it, and as far as this case shows, he was not in -debt. The plaintiffs, the sons of the husband, resided with their father. That, during that year (1866) as one of the plaintiffs swears, “my father and family left on account of the perilous condition of the country and went to Iowa, where he shortly afterwards died. Defendant returned immediately and has lived on the land in controversy ever since. My father never bought land anywhere else. Defendant is about sixty-five years old.” This state of facts would not constitute abandonment of the homestead, and no point of that kind is made by the respondent. Thompson on Homestead, sec. 263, et seq. Here the defendant left the homestead by reason of “the perilous condition of the country,” and the childless wife •“ immediately ” returned after the death of her husband.
II. But the point relied on by the respondent is, that the defendant is not “the head of a family,” and, hence, cannot take advantage of the homestead law. And
In the case at bar the evidence clearly shows that the husband had lived on the premises with his wife, until forced to leave by the disturbed condition of the country. That immediately after his death, bis wife returned to the homestead and resided there for something like fourteen years, keeping house with her old brother, but was without husband or child. That she is first sued by her step-sons, the plaintiffs, for a debt of one hundred and two dollars, and her land sold and bought in by them, and now it is said she is not the head of a family and cannot claim her homestead. Because she was so unfortunate as to lose her husband, and had no children
We think the circuit court erred in refusing the instruction asked by the defendant. The evidence fully justified it. The judgment is reversed and the casue remanded with directions to the circuit court to enter judgment for the defendant.