169 Mo. 334 | Mo. | 1902
— In 1872 and 1874, Joel H. Wilkerson acquired the property in controversy, which is located in Linneus, Missouri, and used it and occupied it as his homestead, his wife, the defendant, and his family residing thereon with him. On June 12, 1890, he and his wife conveyed the property to his son, Charles, and on the same day Charles conveyed it to his mother, the defendant. The purpose of these conveyances was to transfer the property from Joel to his wife, as a gift, and to make provision for her. After the transfer he and his wife and family continued to occupy the property, until his death on June 19, 1891, and Mrs. Wilkerson has occupied it ever since. Mrs. Wilkerson was appointed administratrix of her husband’s estate and served as such about a year, and upon, her resignation, W.
The defendant asked the circuit court, to make a special finding of facts, as provided by section 2135, Revised Statutes 1889, and that court attempted to comply therewith, and in pursuance thereto entered a combined finding of facts and decree, reciting therein that it found all the issues for the plaintiff, except as to one of the claims, -and except that it found “that the defendant is entitled to homestead in the real estate” described, and then set aside and declared void the deeds aforesaid which transferred the title to the defendant, and ordered that the premises, “be sold, subject to
I.
The land was the homestead of Mr. 'Wilkerson from 1874 to 1890, when he transferred it to his wife. The claims' now owned by the plaintiff were not in existence when the land was acquired and devoted to the homestead. Therefore, the land was exempt from seizure or sale for the payment of these claims during the life and ownership of Mr. Wilkerson. [R. S. 1889, sec. 5435; Peake v. Cameron, 102 Mo. 568; Davis v. Land, 88 Mo. 436; Bank v. Guthrey, 127 Mo. 189; Macke v. Byrd, 131 Mo. l. c. 691; Ratliff v. Graves, 132 Mo. 76; Bank v. Brown, 165 Mo. 32.] The land could not be sold during that time subject to the homestead rights of Mr. Wilkerson, and such a sale would convey no title whatever to the purchaser. [Cases supra.]
But Wilkerson, with the co-operation of his wife, had1 express power under the statutes of this State to convey, mortgage, alienate or in any other manner dispose of it or any part of it. [R. S. 1889, sec. 5435; R. S. 1899, sec. 3616.] And this is true whether he was solvent or insolvent, and whatever miay have been his motive in so disposing of it. [Bank v. Brown, 165 Mo. 32.] Por, “no fraud upon creditors can be perpetrated by any disposition the
In the case just cited it appeared that a father acquired the land in controversy and established his home thereon. He was a widower, but his two' children lived with him. He conveyed the land to his daughter1 upon condition that she should support him during the balance of his life. He was then eighty years old. The plaintiff afterwards obtained a judgment against him and he having no other property out of which to make the judgment, it brought a suit in equity to set aside the deed to the daughter and to subject the land to the payment of the judgment on the ground that the transfer was fraudulent as to creditors. This court, speaking through Burgess, J., held that the conveyance was legal.
That case is in all respects similar to- the case at bar except that the suit to set aside the transfer was commenced during the life of the grantor, whereas here it was not commenced until after his death. But this difference is immaterial and does not militate against the principles there decided, for it was there expressly said: “It would seem clear, from the provisions of the statute quoted, that it was
In other amplifying words, under section 3616, Eevised Statutes 1899, the homestead is exempt from seizure or sale during the life and 'Occupancy of the head of the family, but he, with the aid of his wife, may convey, mortgage, alienate or in any other manner dispose of it, including the right to give it away, because he does not thereby impair any right of any creditor or of any one else to or in the property. If he disposes of it during his life, then there is no extended homestead right in the widow and children after his death, for section 3620, Eevised Statutes 1899, only extends the homestead rights to the widow and children in the event the head of the family dies seized of the land. If he is not so seized at the time of his death, by reason of having disposed of the land during his life, then the widow and children have no extended right of homestead, under section 3620, Eevised Statutes 1899, and there is no estate or interest in the land which his creditors can- subject to the payment of debts.
The statute imposes no limitation or restriction upon his right to dispose of his homestead in any manner, or upon any terms, or for any price or purpose or reason he sees fit, except only that his wife shall join in the conveyance. No other living being has any right or interest or claim that can be affected.
In the ease at bar, the plaintiff has proceeded upon the mistaken theory or idea that the transfer by Wilkerson to his wife was fraudulent as to creditors, and that by setting
It follows that the petition does not state a cause of action, the facts show no right whatever in the plaintiff to equitable or legal aid, and that the title to the land is fully and legally vested in the defendant free from all claims of her husband’s creditors. Hence, the judgment of the circuit court is reversed and the bill dismissed.