82 Mo. App. 377 | Mo. Ct. App. | 1900
-The facts of this case are undisputed and are substantially these: (1), the plaintiff, J. M. Rogers, was the owner in fee of 160 acres of land on which he, with his wife, had continuously lived as their homestead for more than thirty years; (2), that the said plaintiff and wife executed several deeds of trust on said lands to secure the payment of
The petition of the plaintiff alleged, amongst other things:
“Said payments for support have been by the grantees in Said last named deed made to the said J. M. Rogers and wife, and that they are still'occupying the residence upon said premises as provided in said deed of conveyance so made 'by them; but that the amounts so stated 'as due 'and secured by thedeeds of trust against the said land is now due and the plaintiffs are unable to pay the same without renewing said loan or securing a new loan on said land for the amount thereof; 'and that owing to the fact that said transcript judgments are of*381 record as an apparent lien against said land it is impossible for the plaintiff to secure either a renewal of said .loan or make, a new loan on said lands for the amount necessary to pay off the said incumbrances -against the same, for the reason that-the homestead and exemption rights of ’the plaintiff, J. M. Rogers, in and to said lands both at the time of making of the Said deed of conveyance to his, co-plaintiff herein, and now are not matters of record but the evidence thereof reáts in parol; •and for said reasons the filing of the said transcript judgments as before stated are and constitute a cloud upon the title 'and rights of -the plaintiff herein, and were filed by the defendant for the purpose of incumbering the plaintiff’s title thereto, and preventing these plaintiffs from either renewing said loan or securing a new loan on said land to pay off said old loans, and for the purpose of harassing the plaintiff in the matter of protecting their title and interests in and to said land, knowing well that defendant has now and never did have 'any valid lien or right to -the enforcement of said judgments or any part of them against the said land.
“Wherefore the plaintiffs ask that the judgment aforesaid be by this court decreed and declared to be no lien incumbrance against said real estate or any part thereof or the interest of any of the plaintiffs herein, and that the cloud upon the title thereto in the plaintiff by reason of the filing of the judgments in the office of the clerk of this court by the defendant be removed, and that the plaintiffs be declared 'and decreed to have as against the said judgments and the defendant, by reason of the said judgment and 'their filing as aforeslaid the full title in and to the said land and the full and free right of disposition; conveying 'and mortgaging thereof, and for all proper relief warranted by the premises.”
If appears from the record -that during the progress of the trial the defendant admitted all the facts alleged in the .petition, except the execution of said deed of plaintiff J. M. Rogers and wife to the other plaintiffs. This deed was- sub
The transcript of the justice’s judgment when filed in the office of the clerk of the circuit court was as much a Hen against the real estate of J. M. Rogers as if it had been given in the circuit court. R. S. sec. 6287. Judgments rendered by any court of record are a Hen on the real estate of the person against whom rendered, situate in the county for which the court is held. R. S. sec. 6011.
With respect to the effect of judgments upon homestead estates there are 'two classes of decisions. The first holds that the Hen of a judgment does not attach to the homestead of the judgment debtor. Lamb v. Shays, 14 Iowa, 567; Green v. Marks, 25 Ill. 221; Houghton v. Lee, 50 Cal. 103; Black v. Epperson, 40 Tex. 162; Morris v. Ward, 5 Han. 247; Martin v. Meredith, 71 N. C. 215. And the second holds that such Hen does attach, but remains in abeyance while the premises continue to be occupied as a homestead and becomes potential as soon as the right of the homstead ceases, whether by separation of the family, abandonment or by alienation. Moon v. Granger, 40 Ark. 574; Smith v. Brockett, 36 Barb. 571; Whitworth v. Lyons, 39 Miss. 467; Bank v. Carson, 5 Neb. 47; Eberharts Appeal, 39 Pa. St. 509.
The cases in this state are to be assigned to the first class. Beckmann v. Meyer, 75 Mo. 333; Holland v. Kreider, 86 Mo. 59. If the said lands were covered by the homestead exemption of the said J. M. Rogers the judgment was not a Hen thereon; but whether or not they were so covered was not disclosed by the record. If a fact, it could only bo established by extrinsic parol evidence.
The defendant’s 'contention here is that, even admitting the facts to be as we have stated them, still a court of equity is without jurisdiction to afford the protection prayed for in the petition of plaintiff. Some of the elementary books on equity jurisprudence, and, as well, some of the adjudged
In Clark v. Ins. Co., 52 Mo. 272, it was said: “The settled rule is, that when the defect appears upon the face of •the record, through which alone the opposite party can claim title, there is not such a cloud upon the title as to call for the exercise of the equitable powers of the court to remove it. But when such claim appears to be valid upon the face of the record, and the defect- can only be made to appear by extrinsic evidence, particularly if that evidence depends' upon oral testimony to establish it, it presents a ease for invoking the aid of a court of equity to remove it, as a cloud upon the title. Cox v. Clift, 2 Comst. 118; Ward v. Dewey, 16 N. Y. 529; Piersoll v. Elliott, 6 Pet. 95. The distinction in the two classes of cases is not only founded in reason, but exists in the very, nature of things. It may be safely assumed, when such circumstances exist in connection with a deed as not only to give it an apparent validity, but to enable the grantor to make out a prima facie title under it, a cloud is created. In showing title under a deed by the grantee himself, or in showing that the deed constitutes a cloud upon another’s title, it is necessary to show some sort of title, either real or apparent, in the grantor. The fact however is very material as to the manner in which tine title of the grantor is shown. If a grantee in a deed, void for some reason not appearing upon its face nor in any of the previous deeds, is able to show a regular
Under the deed from J. M. Rogers and wife to their co-plaintiffs, undoubtedly passed 'the fee in the lands. The reservation to occupy the mansion house was no more than a privilege that was not assignable or vendible. Fisher v. Nelson, 8 Mo. App. 90. The condition contained in the deed was a condition subsequent. In the event of the nonperformance of- this condition as to the payment to the grantor of the annuity, or as to any other condition, the right to take advantage of the forfeiture could not be exercised by á strangei’, but only by the grantors. The estate would mot be divested but would continue in the grantees until an entry by the grantors, or the equivalent thereto. Messersmith v. Messersmith, 22 Mo. 369; Ellis v. Kyger, 90 Mo. 600. But where the grantees take advantage of the forfeiture the title reinvests in them, and the judgments of the defendants would apparently become a lien thereon, while not really so in faict. The lands so conveyed by the said J. M. Rogers >and wife were not subject to defendants’ judgment, and if the title should revest in the former, by reason of the forfeiture of the condition subsequent in the deed, their 'homestead estate thereon would not in any way be impaired or destroyed. The lien of the judgment would no more attach to the homestead 'after the reinvestiture of ithe title than it did before the conveyance was mgtde.
We do not suppose it would he contended, if one convey
The defendant, by filing the transcripts of its judgments, has cast 'a cloud over the title of the grantees, ¡and caused the validity thereof to be doubted; and has thereby succeeded in depreciating its market value.
The grantees, presumably, -have not only paid said annuities, but, ’as well, tbe interest -and taxes -on said -lands since their purchase. They -are not full handed and now find themselves unable to discharge the deed of trust -debts which have become, due. By reason of the -said conditions, brought about by the filing of the transcript judgments, 'and the defendants’ assertion that said judgments are a lien on said land, the oare
The decree is affirmed.