131 Mo. 682 | Mo. | 1895
This is a suit to charge certain real property, in Cape Girardeau county, with the lien of a judgment, and to have part of the land, in excess of the homestead value, set apart and subjected to sale to satisfy the lien, although the land is owned by other parties than the judgment debtor.
On the other side, it is claimed that the property
The facts that control the result were admitted by the pleadings or at the trial.
Mr. Ranney was in possession in May, 1876, when the tract in question (consisting of nearly 105 acres) was set apart to him as a homestead, by appraisers appointed by the sheriff, under two executions in favor oh Mr. Houck, as administrator, plaintiff, against Ranney and another. The sheriff’s report of sale in that matter (including a report of the appraisers, who set apart the homestead) was confirmed by the court from which the executions issued.
Ranney had occupied the place as a homestead for himself and family for many years prior to any of the dates in this record; and continued in such occupancy until the conveyance to Mrs. Byrd.
After the homestead had been so set apart, the present plaintiff, Mr. Macke, obtained in 1883 a judgment against Ranney and another for $739.80, on a note executed by them in March, 1876.
In July, 1885, Ranney and Mr. A. R. Byrd made a contract by which the former agreed to sell the piece of land (which we shall call the homestead) for the price of $2,600. Before the sale was consummated, Macke sued out an execution on his judgment, and garnished Mr. Byrd. Thereupon Ranney refused to make a deed. Upon a trial of the garnishment case, there was a finding for defendants, and Mr. Byrd was discharged as garnishee.
But after the garnishment was served, Mrs. Byrd, wife of this Mr. Byrd, purchased the property for the same price agreed upon in the former contract of sale. The homestead was conveyed to her through an intermediary, August 6, 1885. The consideration was
After this purchase, Mr. and Mrs. Byrd entered into possession, and Ranney moved out of the state.
In 1886, plaintiff sued out a writ of scire facias to revive his judgment, making Mr. and Mrs. Byrd parties, as well as the original defendants. The court ultimately discharged the former as unnecessary parties, but entered judgment of revivor against Ranney upon a service by publication as to him.
Then followed the present suit, in 1888, by the judgment creditor, Macke, against Mr. and Mrs. Byrd to cause the homestead to be reassigned, and that part of it in excess of $1,500 in value to be subjected to the plaintiff’s demand as embodied in the judgment.
The trial court found for plaintiff, and appointed commissioners to set off the homestead, which they afterwards did, by a particular description; and the court adjudged the rest (a considerable part) of the original homestead tract to be subject to plaintiff’s judgment, notwithstanding the original debtor Ranney had meantime parted with his title as above described.
The defendants took the pending writ of error after the customary motions and exceptions to preserve for review the questions submitted here.
The lien of a judgment upon realty in Missouri is founded on statute. By the terms of its creation the lien impresses “lands, tenements and heredita
The effect of the section cited is to limit the force of the words “real estate,” in section 6011 (R. S. 1889), to a narrower meaning than they would otherwise bear through the aid of section 6570. But the last named section is only applicable where the construction it furnishes is not plainly repugnant to the intent of the legislature or of the context of the statute to be construed. But in regard to judgment liens, section 6048 supplies context which qualifies the broad meaning that section 6011 might be construed to have without such context.
The homestead act declares that real property coming within its protection is “exempt from attachment and execution,” subject to certain exceptions as to prior debts not relevant to the pending controversy. R. S. 1889, sec. 5435.
It is evident from the language of that section that, as between a judgment creditor and his debtor in possession of a homestead within the statutory size and value, the judgment (on a debt created since the record of the homestead deed) creates no lien on the homestead property. Harrington v. Utterbach (1874) 57 Mo. 519; Holland v. Kreider (1885) 86 Mo. 59; Biffle v. Bullam (1893) 114 Mo. 50 (21 S. W. Rep. 450).
But does the lien touch or hold the surplus of size or value of the homestead?
The'Missouri law provides a mode to set out a homestead of statutory amount from a larger tract of which it forms part. The provisions of that law give the judgment debtor in an execution (levied on the excess) a right to choose what part of the homestead estate (within the limits of value and size) shall be protected by the exemption (if he declines to choose, it is otherwise selected), “and the sheriff shall then
This right of selection (as well as other provisions of the homestead law, mentioned later) can not be reconciled with the idea that, as against the debtor, the judgment lien reaches the excess of quantity or value of the homestead beyond the statutory maximum, before an ascertainment, and setting out, of the part to which the exemption shall apply.
As was said by the supreme court of Vermont, in construing a section of their law (Rev. Laws, Vt. 1880, see. 1895) which is substantially, and almost literally, the same as our section 5436 (E. S. 1889), “according to these provisions, the homestead must be set out from the residue before the residue can be set out on the execution.” Fairbanks v. Devereaux (1876) 48 Vt. 552.
Our homestead statute was in great part transplanted from Vermont. Eulings in that state upon language embodied in our own law are entitled to, and have justly been accepted as having, at least, very persuasive, and sometimes authoritative, force here. Skouten v. Wood (1874) 57 Mo. 380; Shindler v. Givens (1876) 63 Mo. 394.
Under Missouri law the debtor having a homestead may sell it, invest the proceeds in another homestead, and carry the exemption of the first homestead into the one subsequently acquired, even as against debts created before the acquisition of the latter. R. S. 1879, sec. 2696, same as sec. 5442 of 1889.
To make that right of sale effective and complete, it is essential to give such a construction to other parts of the statute as will not embarrass the exercise of that right — so far as that may be done without violence to their own clear intent and terms.
The rights of selection and of exchange of homesteads, as given to judgment debtors by sections 5436 and 5442, could not be fully enjoyed, if it were held that the lien of a judgment reached, and secured to the creditor, an uncertain part of the homestead property, without an ascertainment of the surplus to which the lien could attach, as provided by law.
The Missouri homestead may be moved about, under the protection of section 5442. It can not be fastened to one spot by a judgment lien, which would be the consequence of permitting it to be sold on execution subject to the homestead right.
In contemplation of section 5436 the surplus, above the .statutory measure, is not available on execution until ascertained and determined by the location of the true homestead itself, in the manner prescribed.
The homestead in dispute in the present case was fixed and defined by the action of appraisers, the sheriff and the court, under the Houck executions in 1876, and the debtor had the right to all the privileges of a homestead owner as to that property, so set off (including the right to sell it), until some creditor should by proper steps, attack the former allotment of the homestead as to quantity or value. This might be done at anytime by proceeding under sections 5436 or 5444; but until that course was taken by some one, the debtor was entitled to the full enjoyment of all his rights in and to the homestead property, including the
The fact that Ranney realized by his sale more than the statutory amount to which the homestead is limited, is of no concern, as against the purchaser of it from him, in such an action as this by the judgment creditor.
If, as we hold, the lien of judgment did not attach to the surplus in value, until ascertained by an admeasurement of the proper homestead, then .the lien of judgment was no impediment to a sale of the homestead by the debtor as the statute permits.
But we believe the conclusion we have reached is supported by principles declared in a number of other decisions, which we regard as establishing a sound construction of the homestead law. Vogler v. Montgomery (1874) 54 Mo. 577; Perkins v. Quigley (1876) 62 Mo. 498; Beckmann v. Meyer (1882) 75 Mo. 333; Holland v. Kreider (1885) 86 Mo. 59; Grimes v. Portman (1889) 99 Mo. 229 (12 S. W. Rep. 792); Bank v. Guthrey (1895) 127 Mo. 189 (29 S. W. Rep. 1004).
The Missouri law on this subject, is, unfortunately, not a model of clearness of purpose in some of its features, though its general design is plain enough.
It prescribes rules of conduct some of which are applicable to the homestead owner and to his obligations and rights, during his lifetime, and others of which govern the rights of his widow and children, in or to the homestead, after his death.
The case in hand does not involve an inquiry into the nature of the estate of the widow or children of the homesteader, and our rulings should be understood as applying strictly to the facts now in judgment.
It results that the judgment is reversed and the cause remanded with directions to dismiss the proceeding.
