84 Mo. App. 178 | Mo. Ct. App. | 1900
At the March term, 1898, of the Pulaski Circuit Court, Mary C. Patton recovered a judgment of $1,500 against the respondent herein, which judgment she duly assigned to the appellant herein. An alias execution was issued on said judgment and a levy made on 160 acres of land as the land of respondent. A motion to quash this levy was filed and sustained, wherefore this appeal was taken.
The motion to quash was sustained on the following agreed statement of facts:
“Upon the hearing of this motion it was agreed in open court as follows. This judgment was rendered in the circuit court of Pulaski county, Missouri, at the March term, 1898,*182 and execution was issued thereon returnable at the September term, 1898; that prior to the time at which the cause of action accrued, the defendant was the owner of three hundred and sixty acres of land, his deed being of record, and that he resided upon the same as his homestead; that at the time said judgment was rendered there was a deed of trust on the said three hundred and sixty acres of land, for the sum of one thousand dollars, and interest amounting to about one hundred and eighty dollars; that under the execution issued under said judgment the sheriff levied upon said three hundred and sixty acres of land and defendant claimed his right of homestead thereunder; that commissioners were appointed and they set out to defendant as his homestead, and he accepted the said one hundred and sixty acres of land now levied upon; that at the time of the levy of the first execution defendant had fourteen hundred and fifty-one dollars in cash which he did not return to the sheriff; that at the September term, 1898, under said execution, the two hundred acres of land were sold; the defendant claimed all his personal property exempt, and was all set apart to him by. the sheriff, -except, however, that no mention was made of the money above referred to; that the two hundred acres of land not set apart to the defendant as a homestead was sold under said execution at the September term, 1898; that after said sale the defendant took the sum of eleven hundred and eighty dollars in cash which he had and which he did not return to the sheriff, and paid off and discharged the deed of trust, above referred to, thereby relieving the homestead set apart to him as well as the other land sold from the lien of said deed of trust; that the two hundred acres were bought by the plaintiff in execution for the sum of one hundred and fifty dollars, and is now held by him; that the one hundred and sixty acres now in question is not worth exceeding the sum of $1,500, and that the defendant lives*183 thereon and has lived thereon ever since the judgment was rendered, that he is the head of a family, and has been at all of said time; that he had other property outside of the cash, aforesaid, in amount equal to the personal property exemptions allowed by law, which was set out to him by the sheriff and by the commissioners, and that the report of the commissioners was silent as to any lien on the homestead, or whether it was taken into consideration.”
It further appears that at the September term, 1898, of the court, the appellant procured the appointment of a referee to take testimony to discover assets; that the referee in pursuance of his appointment examined the respondent, who disclosed under oath that at the date of the rendition of the judgment, at the date of service of the first execution and at the date of bis examination he had in cash $1,451, which he concealed from the knowledge of the sheriff; $1,180 of this money he afterwards applied in payment of a mortgage on the three hundred and sixty acres of land mentioned in the agreed statement of facts. If we correctly comprehend the contention of appellant, it is in substance thi3; that it was the duty of the respondent, when the first execution was served on him, to have given up the $1,451 in cash he then had on his person to the sheriff to be applied on the execution; that by failing to do this and instead having used a part of this money to discharge a lien upon his homestead, and being without other property subject to sale on execution, appellant now has the right to sieze and sell the homestead in order to reach the fund invested in it which should have been paid on the first execution. A creditor having a lien upon a particular fund may in equity follow thát fund in the hands of his creditor or his assignee with notice, notwithstanding the debtor may have converted the fund into other property, real or personal or both, but he can not do