Lead Opinion
This is a proceeding in equity to divest title to certain lands in Howell county, out of the defendants, and vest it in plaintiff, and for a decree putting the plaintiff in possession thereof, and for rents and profits. The circuit court decreed the possession to the defendants until the youngest one of them becomes of age, and adjudged the title and possession to the plaintiff thereafter. The plaintiff appealed.
The controversy arose in this wise: The' defendants are the children and heirs at law of R. M. Morgan, deceased. The plaintiff claims title by virtue of a sheriff’s deed to the land, under several judgments rendered against R. M. Morgan during his lifetime. It does not appear from the record whether the land was sold by the sheriff, as aforesaid, before or after Morgan’s death. The defendants claim, and introduced evidence tending to prove, that the land was the homestead of their father during his life, and was not worth more than fifteen hundred dollars, and that upon his death it passed to them until the youngest child attained its majority and that three of them, at the time of the trial, were minors, aged eleven, eight and six years, respectively. On the other hand, the plaintiff admits that the land was occupied by Morgan as a homestead for some time before the judgments were rendered
It further appears from the evidence that this land is worth fourteen or fifteen hundred dollars and that the judgment and costs under which it was sold aggregated $448.84, and that the plaintiff, through its agent and attorney, became the purchaser thereof at the sheriff’s sale for the sum of $25.
I.
It is manifest that the crucial question in this case is whether or not Morgan abandoned his homestead in Pemiscot county. If he did, then neither he nor his heirs can claim any homestead rights in this land, for the debts evidenced by the judgments under which it was sold were in existence at the time he sold the Pemiscot county land and invested the proceeds in this land. [State ex rel. v. Diveling, 66 Mo. 375; Berry v. Ewing, 91 Mo. 395; Buck v. Ashbrook, 59 Mo. 200; Stivers v. Horne, 62 Mo. 473; Peake v. Cameron, 102 Mo. 568; Smith v. Bunn, 75 Mo. 559; Duffey v. Willis, 99 Mo. 132.]
On the contrary if Morgan did not abandon his homestead in Pemiscot county, and if his removal to New Madrid w^as induced by consideration for his sick wife and to obtain bet
The question of abandonment of -a homestead is one of fact, and each case must rest upon its own facts and be solved by the application of the principles and rules of law referred to. The evidence in this case is conflicting and irreconcilable on the question of abandonment. There is enough substantial evidence in the record to support a finding either way. There is also sufficient impeaching evidence to justify a court in disregarding the testimony of defendants’ principal witnesses ; and likewise sufficient supporting testimony to warrant • the court in believing their testimony. There is also sufficient evidence to show malice in one of the pláintiff’s witnesses toward defendants’ principal witness, and so to tincture his testimony with, at least, probable doubt. In this state of the record this court will defer to the finding of fact by the trial court. The trial court found that Morgan purchased this land “with his own money and had the same deeded to the defendants for the purpose of avoiding the payment of his debts; that at the time of the rendition of the judgment offered in evidence, said E. M. Morgan was the owner of said lands; that said lands were purchased with the proceeds of a homestead owned
The judgment must be construed to mean, that the trial court' found the fact to be that Morgan did not abandon his homestead in Pemiscot county, and that as that homestead was not subject to the payment of the debts here referred to, neither is the homestead in this land which was purchased with the proceeds of the sale of the first-named homestead. This conclusion renders the finding that Morgan placed the title to this land in the defendants to avoid paying his debts, wholly immaterial. Eor if it was a homestead it was not subject to the payment of these debts and as he had a legal right to exchange -one homestead for the other, it is not material what his motive was in putting the title in "his children. No legal penalties can be inflicted for doing any act the law permits to be done. If the act done was legally done, the motive that actuated the doing thereof is immaterial. [Bank v. Guthrey, 127 Mo. 189.]
The conclusion being thus reached that this land was Morgan’s homestead, if it was sold during his lifetime such sale was unlawful and conveyed no title to the plaintiff. [Bank v. Guthrey, 127 Mo. 189; Macke v. Byrd, 131 Mo. 691; Ratliff v. Graves, 132 Mo. 76.] If it was his homestead and was sold after his death, then the purchaser acquired the fee, subject to the extended right of homestead in the children until the youngest child attains his majority. [Keene v. Wyatt, 160 Mo. 1.] I cite this case as supporting this proposition, but I protest now as I vainly protested then, against such a construction of the statute. The record does not disclose whether the sale was before or-after Morgan’s death. As shown, if it was before his death, the plaintiff got no title and, hence,
ACCOMPANYING REMARKS.
Concurrence Opinion
Whilst concurring in the foregoing opinion, I do not wish to be understood as holding that under the homestead law, as amended by the Act of 1895, land embraced in the homestead can be sold under execution or in course of administration to pay debts during the life of the widow or minority of the children, or even that it can be sold for such purpose at the end of the extended period of exemption. That question is not for decision in this case, because the only parties here who could complain of such a sale are-mot complaining. The heirs of Morgan have not appealed from the judgment of the circuit court, and are therefore satisfied with what the judgment gave them. In my opinion, the decisions of this court in Broyles v. Cox, 153 Mo. 242, and In re Estate of Powell, 157 Mo. 151, are right; and, as the rights adjudicated in those cases arose under the homestead law after the amendment of 1895, those decisions are not affected by the opinion in Keene v. Wyatt, 160 Mo. 1.