247 Mo. 132 | Mo. | 1912
This cause was certified to this court upon-a division of opinion in the Kansas City Court of Appeals, the majority of that court being in favor of the affirmance of the judgment below, Ellisok, J., dissenting. It is a proceeding in the DeKalb county Circuit Court to quash the levy of an execution on land in that county on the ground that the property levied on was the homestead of Cook, the judgment debtor. The majority opinion of the Court of Appeals (Sperry v. Cook, 138 Mo. App. 296, 297) contains a succinct statement which clearly presents the single issue as follows:
“In June, 1903, defendant, whose right name is J. Alden Cook, promised to marry plaintiff and February 24, 1904, was fixed as the date of the wedding. In October, defendant bought a farm of eighty acres in DeKalb county and filed the deed for record on*135 February 11,1904. Sis clays later, lie married another woman, and in March he and his wife began the occupancy of the farm as their homestead. Plaintiff then sued defendant in the circuit court of DeKalb county to recover damages for breach of promise of marriage and on May 7 following, obtained judgment in the sum of $1750. She had execution issued on this judgment and levied on the farm and the sole question for our consideration is whether defendant had acquired a homestead right to the property as against the cause of action on which plaintiff’s judgment is founded.”
Sec. 6711, E. S. 1909, provides: “Such homestead shall be subject to attachment and levy of execution upon all causes of action existing at the time of the acquiring such homestead, except as herein otherwise provided; and for this purpose such time sháll be the date of the filing in the proper office for the records of deeds, the deed of such homestead, when the party holds title under a deed, but when he holds title by descent or devise, from the time he becomes invested with the title thereto; and in case of existing estates, such homestead shall not be subject' to attachment or levy of. execution upon any liability hereafter created.” The question involves the construction of this provision to ascertain (1) when the homestead of the appellant was acquired, and (2) when the cause of action represented by the judgment under which the respondent seelrs to sell it began to exist.
I. As was said for this court by Fox, J., in Sharp v. Stewart, 185 Mo. 518, 529, the subject of homestead is one in which the courts have manifested a very deep consideration, and “in view of the benevolent purposes sought to be accomplished by them, it has been nearly the universal ruling of the courts that such statutes should be liberally construed.” It also assists us if we bear in mind that these statutes are not .in derogation
Section 6704 exempts the homestead of every housekeeper or head of a family, consisting of a dwelling house and appurtenances and the land used in connection therewith, to the amount and value named, which is or shall be used by such housekeeper or head of a family as such homestead, from attachment and ■execution, except as provided in the act. There is nothing uncertain about this. Leaving, for the moment the exceptions out of our consideration, it refers only to the time the property is sought to be taken in execution; so that if it should he thus occupied at the time, it would come within the terms of the exemption, unless there might be some constitutional question raised as to its application to contractual obligations assumed before the enactment of the law. We must, then, look for any modification of this absolute exemption from the operation of the writs named, in some other portion of the act.
In this inquiry the history of the law is helpful. The first homestead act (Laws 1863, p. 21) provided for the exemption “from sale under execution -(or other process) when owned by the head of a family, or wife, who shall be a bona fide resident of the State, any of his or .her real estate, not exceeding (one bun-'
Recapitulating these provisions in their application to this case, the Act of 1863 exempted every homestead held as such at the time of the exemption, except as against debts or liabilities contracted before the taking effect of the act. The Legislature evidently thought that in this respect it covered the ground of their constitutional power. In the Act of 1865 they evidently intended to change it so as to make the exception apply to all causes of action accruing before the acquisition of the land where it was acquired after the passage of the act, leaving the law unchanged as to lands acquired before its passage. Every word used was necessary and appropriate for this purpose and no other. This leads us to the conclusion that
If we have devoted more discussion to this question than it apparently deserves, it is because'we have not heretofore been entirely consistent upon the question. In Barton v. Walker, 165 Mo. 25, we evidently adopted a different view, while in both the earlier case of Finnegan v. Prindeville, 83 Mo. 517, and the later one of Sharp v. Stewart, 185 Mo. 518, it was distinctly held, following decisions in the State of Vermont, which is said to have furnished the model for our homestead Jaw, that “the policy of the law is to secure housekeepers and heads of families homes which cannot be taken from them for debts contracted after the acquisition of the homestead. The acquisition of the land must be followed by its occupancy as a homestead, and this occupancy, whenever it occurs relates back to the time when the deed was filed for record. ’ ’ Onr reasoning in the, Barton case that the view we now take would, in case one has two tracts of land on one of which he resides, have the effect to give him two homesteads at the same time, overlooks the fact that the one only would be exempt on which he resides with his family at the time of the levy of the execution, and that the provisions we are now considering simply perform the purely legislative office of indicating the character of the liability to which the exemption of his one homestead shall apply.
II. It is suggested that the existence of the “cause of action,” which resulted in the judgment under which the respondent is attempting to sell the real estate levied on, dates (1) from the time the promise of marriage was made; (2) from the date of its
There is no expression in all our legal nomenclature that carries its meaning more conspicuously on its sleeve.than does the phrase “cause of action.” The words are unmistakable when we apply the meaning, universally accorded to them, and the expression has no technical signification other than that they express. Bouvier, in his excellent dictionary, defines it as “matter for which an action may be brought;” and explains it by saying: “A cause of action does not accrue until the existence of such a state of things as will enable a person having the proper relations to the property or persons concerned, to bring an action.” Quoting from the authorities, he says: “A cause of action is said to accrue to any person when that person first comes to a right to bring an action.” If we desire further support for what seems a self-evident proposition we can find citations and' quotations in abundance under that head in Words and Phrases. With that perspicacity which the courts sometimes display in the search for half hidden expressions of the legislative will, we have found in the homestead law (Secs. 3619; 3620, R. S. 1899), that the words “debt,” “debts” and “debtor” are used in connection with those liabilities with respect to which the homestead is exempted, and have, accordingly, by construction, properly extended the operation of the expressions contained in Sec. 3622, R. S. 1899, already quoted, so as to include indebtedness arising out of money obligations not yet due. [Farra v. Quigly, 57 Mo. 284; Stivers v. Horne, 62 Mo. 473.] The word debt however has a meanina- ‘so well established that it cannot be
In Berry v. Ewing, 91 Mo. 395, this court seems to have used an expression inconsistent with our present conclusion respecting the meaning of the phrase “cause of action” in our homestead law. The case however was decided expressly and properly on the ground that the homestead claimed could not be constitutionally exempted from a money liability incurred by the execution of a curator’s bond before the passage in 1863 of our first homestead law. The question we have discussed was again before this court in Loring v. Groomer, 142 Mo. 1, when we held that the covenants of a warranty deed do not, before breach, create a cause of action within the meaning of the very section we are now considering. We note that the Court of Appeals in its majority opinion disposes of the case just cited with the following remark: “The case of Loring v. Groomer, 142 Mo. 1, much relied on by the defendant, is not in point. Covenants of general warranty in a deed to real property run with the land and being in rem differ in the rules by which they are con
The judgment of the DeKalb Circuit Court is reversed and the cause remanded to be proceeded with in accordance with this opinion.
The foregoing opinion of Browu, C., is adopted as the opinion of the court. All the judges concur.