75 Mo. 60 | Mo. | 1881
The question to be determined is, whether. John Baker, on the following facts, is entitled to a homestead in a tract of land in Schuyler county, exempt from execution on a judgment in favor of appellant against said Baker and others. The agreed facts are as follows:
From 1866 to 1876 Baker was the owner in fee of several lots in the town of Lancaster, Schuyler county, upon which his dwelling house was situated, in which he resided with his family during that period. His deed to that-property was filed for record April 28th, 1866. In 1869 he purchased 210 acres of land, in Schuyler county, near the town of Lancaster, of which the land now claimed as a homestead is a part, and his deed thereto was recorded in 1869. In 1876 he sold his residence property in Lancaster for $1,300, which in the same year he expended in the erection of a dwelling house on the land in controversy, and lias-resided there since 1876, with his family. The 160 acres claimed as a homestead does not exceed in value $1,500. It was enhanced in value about $500 by the erection- of said dwelling house, and. the land claimed'is all used in connection with said dwelling house as a homestead, and is improved and cultivated. Plaintiff’s demand against Baker consists of two promissory notes for $300
Our homestead act is not free from ambiguity, and it is to be regretted that the language employed in sections 7 and 8 is not more exact. Still we are of the opinion that no reasonable construction of those sections gives Baker a homestead in the tract of land in controversy, exempt from execution issued on plaintiff’s judgment. The homestead secured to the head of a family, is by section 7, subject to attachment and levy of execution upon all causes of action existing at the time such homestead was acquired, “ and such time shall be the date of the filing, in the proper office for the records of deeds, the deed for such homestead.” Section 8.provides that another homestead may be acquired, ■ which shall not be liable for any debts to which such prior homestead would not have been liable; provided it shall have been acquired with the consideration derived from the sale or other disposition of such prior homestead. In other words, it authorizes one to sell or dispose of a homestead, exempt from a given debt or debts, and acquire another with the proceeds of the former, which shall also be exempt from such debt or debts.
It cannot be controverted, that the land in question, at any time before Baker erected his dwelling house upon it and moved into it, was subject to attachment and levy of execution for the demand of the appellant. That demand originated in 1873. Baker’s house was erected on the land in 1876. In 1873 he had a homestead in Lancaster. He could not have two at the same time. His intention when he purchased the land in controversy, to make it his home, is wholly immaterial. His homestead in the town of Lancaster was not subject to levy of execution on plaintiff’s cause of action, but the land in controversy, by