9 Mo. App. 438 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This is a proceeding under sect. 10 .of.the Homestead Act (Rev. Stats., sect. 2698), to subject the residue of certain real estate in the city of St. Louis, in excess of the homestead of the defendant, to the satisfaction of. a judgment for $3,535.20, obtained by the plaintiff against him in the St. Louis Circuit Court. The premises in question consist of a lot of ground having a front of thirty-five feet on Cass Avenue in St. Louis, and extending back between parallel lines, one hundred and thirty-three feet and nine inches to an alley. On the front portion of the lot, and fronting on Cass Avenue, there is a building of eight rooms, occupied by the defendant as his homestead, and by his. tenants. .On the rear portion there is a similiar building fronting on the alley. The plaintiff sued out execution on his judgmeut, and directed the sheriff to levy it - on the entire premises. This the sheriff did, and thereafter advertised the entire premises for sale. The defendant having in the meantime claimed the premises as his homestead,
The plaintiff, having learned the decision of the appraisers, directed the sheriff not to proceed with the sale, but to' return the execution into court, with his doings thereon, which he accordingly did; and the plaintiff thereupon filed a motion in the cause, praying for the relief which he now seeks in the present proceeding; but the court, being of opinion that such relief must be sought for in a separate proceeding, overruled the motion. The plaintiff then filed the present petition, setting forth, in substance, the foregoing facts, and averring that the severance of the lot, as determined upon by the appraisers, would greatly depreciate the value of the residue of said premises (meaning the rear portion), and be of great inconvenience to the plaintiff, or. parties interested in the residue, as well as in the homestead ; and praying for the-relief granted by the statute. ' - -
The section of the statute referred to reads as follows;
The case was tried in the court below without a jury.' Evidence was adduced on the part of the plaintiff to show that a severance of the property according to the decision •of the appraisers would diminish the value of that part fronting on the alley, by reason of cutting off the private-way ; and counter evidence was presented by the defendant. Testimony was also offered on both sides as to the value of the premises unsevered, and the value of the respective portions if severed according to the decision of the appraisers, —the effort of the plaintiff evidently being to show as large a valuation as possible, and that of the defendant the contrary.
The learned judge who heard the cause, entered a decree which contains two elements : First, a finding of fact, namely,
The decision at which we have arrived involves the conclusion that the point insisted on by the defendant, that the report of the appraisers is conclusive, is not well taken.We may concede — though it is not necessary for us to decide it — that the proceedings of the appraisers, if they had been consummated by the sale of the residue, or if they had been suffered to pass without timely objection, would have been conclusive. But the plaintiff proceeded in the only way which appears to have been open to him, to have them set aside in a direct proceeding. He directed that the sale be not proceeded with, but that the sheriff return the execution into court, with his doings thereon; and when this was done, he endeavored to invoke the aid of the statute by
It is conceded by both parties that this proceeding is so far analogous to a suit in equity that, upon this appeal, the whole cas.e. is before us for reexamination, both as to the law and the facts. All the testimony is preserved in a bill of exceptions; and, looking into this testimony, we are of opinion that it does not warrant the conclusion of the court below that the entire premises are of the value of $6,000. The only matter upon which this conclusion appears to have been based, was an offer made by the plaintiff’s attorney, at the close of his testimony, to pay the defendant $3,000 for his homestead in the premises, and to credit him with $3,000 on the execution for the residue, provided.the whole premises were conveyed, to the plaintiff free from incumbrance. We know of no principle upon which such an' offer could be treated as evidence of the value of the premises; and although the learned judge evidently treated it ás a proposition for a settlement more favorable to the defendant than he would otherwise be entitled to under the evidence, so that, if an error, it was an error beneficial to him, yet we cannot so regard it. It is equivalent to a finding that the residue in excess of homestead ivas of the value of $3,000, and deprives the defendant of the option given by the statute to have the residue transferred to him ( which, in this case, would mean to have the lien of the plaintiff’s judgment released therefrom) on payment of the value thereof.
The homestead contemplated by our statute is a homestead in kind. It is, as against creditors, in the nature of a charge, or incumbrance, in favor of the wife and children of the debtor, upon that portion of his real estate which is, occupied by himself and family as a home, not being in excess of a given quantity and value. It is, if practicable, to be set off to the debtor in kind, and is not to be sold to the creditor, even at the full limit of its statutory value, merely because the creditor may wish to purchase it. It is against the policy of the statute to permit it to be sold for partition except in cases of necessity ; for this would place it within the power of imprudent heads of families to squander the proceeds, and thereby deprive the family of the benefit of the exemption. Nor is this objection obviated by the fact that the statute provides that in case of the sale of the homestead under the section under which this proceeding is instituted, the court may control the investment of the proceeds in a new homestead, or their payment out of court, as in the case of the funds of married women. Rev. Stats., sect. 2699. This would be an inconvenient and expensive proceeding, liable to abuse, and not to be resorted to except in cases of necessity. What such a case of necessity is, is pointed out by the statute itself. It is not a case where the severance of the homestead would slightly, or even considerably, depreciate the value of the residue, nor where it would result in slight, or even considerable, inconvenience to the parties, or either of them; but it is a case where a severance of the homestead, would “ greatly depreciate the value of the residue,” or be of “ great inconvenience to the parties interested, either in such residue or in such homestead.”
If the case required it we should not hesitate to decide that the facts shown by the testimony do not make out a case for the relief grauted under the section of the statute
It is clear from the evidence, that if the premises were severed in accordance with the decision of the appraisers, with the additional provision of a reservation of a perpetual easement of way in the threé-foot alley, for the benefit of the future tenants of the rear premises, this would not reduce the defendant’s homestead below the value of $3,000, nor substantially interfere with his enjoyment of it. This would entirely meet the difficulty which has been the cause of the filing of this petition, and leave the defendant in the unimpaired enjoyment of the homestead guaranteed by the statute.
We therefore reverse the decree of the Circuit Court, and enter a decree in this court declaring that the homestead of the appellant shall consist of that portion of the premises set apart to him as his homestead by the appraisers, subject to a perpetual easement of way, to be enjoyed in the alleyway in question, by the future, owner or owners, occupier