169 Mo. 553 | Mo. | 1902
— This is a suit in equity to enjoin the sale of certain land in Grundy county, under a deed of trust, upon the ground that the sale would cast- a cloud on the plaintiff’s title.
The statements in the petition are to the effect that- in 1895 the circuit court of Grundy county rendered a judgment in favor of the city of Trenton, against one F. M.
The answer admits the judgment, the execution, the sale thereunder, the purchase by plaintiff, the motion to quash the execution, the motion to set aside the sale and the rulings of the court on the same as stated in the petition. It also admits the execution of the deed of trust as pleaded, denying that it was without consideration or that it was fraudulent, and admits that it was about to be foreclosed as stated
On the trial the plaintiff produced in evidence the judgment of the Grundy Circuit Court as pleaded, dated August 31, 1895, which was, on appeal to the Kansas City Court of Appeals, affirmed, March 22, 1897; the execution and evidence of sale thereunder and deed to- plaintiff; also the court records on the motions to quash the execution and to set aside the sale, as above stated; also that after paying the judgment and costs there remained in the sheriff’s hands $229.95, which he paid to the defendant in execution.
The defendants’ evidence in support of their plea of homestead was to the effect that the land in question was an eighty-acre farm in Grundy county, of value within the $1,500 limit, which E. M. DeVorss had owned since about 1882 and on which he had resided with his family as a homestead for awhile, and, as he testified in general terms, he had all the time ever since regarded it as- his home, though part of the time it was rented out and DeVorss and his family lived in Trenton and Hamilton, from 1889 up to 1894, keeping a hotel and a meat market; in 1894 he went back to his farm 'and remained there until February, 1897, when he rented the farm to Bert Brown and went to Jamesport Springs with his- family and kept the bathhouse. While keeping the springs in May, 1897, he (or his wife) bought a
The testimony on the part of the plaintiff on this issue was to the effect, that from 1889 to 1894, DeVorss lived in Trenton, Hamilton and Cameron, engaged in various kinds of business, chiefly hotel and meat market; that he went back to the farm in 189i4, and remained until February, 1897, ■when he rented the farm to Brown and moved away to James-port, saying that he could not make a living farming and would quit the business; that he reserved a small out-room adjoining the house on the farm in which to store, some •things that he could not at the time move away, but it was not intended for occupation, was not inhabitable and was not occupied. Sometime during the year Brown hired DeVorss’s wife to come there and cook for him and she remained in Brown’s service for several weeks. By agreement with Brown also DeVorss’s boys raised some oats on a small piece of the land; when he rented the farm to Brown, DeVorss took up his residence in Jamesport and was living there with his family when the judgment in favor of the city of Trenton was affirmed by the Kansas City Court of Appeals, and when the deed of trust in question was executed, and he had not lived on the farm since. The finding and judgment of the circuit court were for the plaintiff and the defendants appeal.
The above is but a brief summary of the evidence which we do not deem it necessary to set out in more detail. We have read it all carefully and are entirely satisfied that the finding of the chancellor was right on the'main question of fact involved, which is conclusive of the plaintiff’s right to the relief sought. At the date of the judgment in favor of the city of Trenton in the circuit court in 1895, the land in
The point is made in the brief of appellant that the homestead once conceded, its abandonment is a fact to be pleaded and proven by him who asserts it. [Bealey v. Blake, 153 Mo. 675.] In the case cited by defendants, which was a suit for partition between the heirs and the widow of a decedent, the fact of the homestead was conceded and the real issue was in relation to the effect of a deed executed by the an'eestor and his wife before his death. There was no issue in the pleadings in reference to the abandonment of the homestead and the court held that no such issue was in the case. But the pleadings ai’e different here. The petition sets out a state of facts from which the law draws the conclusion that the judgment undér which the sale was made, through which the plaintiff’s title comes, was a lien on the land prior to the deed of trust under which defendants claim. Defendants, by a plea of confession and avoidance say that at the date of the judgment, at the date of the deed of trust and at the date of the execution and sheriff’s sale, the land was the homestead of tire judgment debtor and not subject to the judgment lien; these allegations the reply puts in issue and the contest at the trial was chiefly around those points, the defendants assuming the burden of proof. The case was tried on the theory by both sides that those issues were in the case, and that was the correct theory.
The point is also advanced that, since at the date of the judgment the land was a homestead, no lien attached, and none could attach until the sheriff had filed notice of his levy as required by section 1922, Revised Statutes 1889. [Idem, sec. 3178, R. S. 1899.]
A question on which there has been a diversity of decisions in different States has arisen as to whether a judg
The statute declares that the lien shall commence from the date of the judgment and continue three years, but that is intended to fix the period of duration or life of the lien.' It does not mean that if there is no property owned by the judgment debtor at the date of the rendition of the judgment against which the lien can attach there shall be no lien, for in the same section it is said: “The lien of a judgment
It is also urged that the sheriff’s sale was void because he did not give notice to DeVorss that he had the right of a homestead in the land. If the' defendant in execution had been entitled to a homestead in the land, 'the sheriff’s duty would have been to so inform him, but as he had' no such right, the statute in that respect had no application.
There are some other questions discussed in the briefs, but in view of what has been said above as to the homestead claim, they become unimportant.
The judgment of the circuit court is affirmed.