104 Mo. App. 128 | Mo. Ct. App. | 1904
(after stating the facts as above). —1. The instrument evidencing the terms of sale of the trees, under the doctrine recognized long since in this State, constituted an equitable lien or mortgage upon the realty affected against H. R. Anderson. Martin v. Nixon, 92 Mo. loe. cit. 34. Whatever may have been the authority, if any, existing at time of the judgment herein, upon which the trial judge relied in the conclusion reached by. him, a decision of the Supreme Court since announced has placed a construction upon the statutory provisions then controlling homesteads, antagonistic to the judgment appealed from. In the language of Judge Fox, rendering the opinion: “Under the well-settled law of this State, prior to the enactment of the statute of 1895, it is beyond dispute that the husband could sell or encumber the homestead, subject to the wife’s inchoate right of dower, except where the wife had filed her claim as provided by section 5435, R. S. 1899.” Gladney v. Sydnor, 72 S. W. 554. In the light of this decision, the husband’s right at the time of the transaction to impose a lien upon the realty, even if it were homestead property, without the wife uniting with him, in absence of the statutory claim perfected by her, is conclusively settled. The wife, however, was neither made a party to the contract, nor did she join in its execution, and her rights to the realty concerned, whether marital or otherwise originating, existed at the time of the contract, were not thereby im
2. The language of the contract providing for payment of the contract price, while not free from obscurity, upon careful analysis, is to be interpreted as contracting for payment of the principal with interest at rate of six per cent per annum, compounded annually, from October 21, 1891, the date of the instrument.
The judgment is accordingly reversed and the cause remanded, with directions to enter a decree embracing a finding for $108 and interest thereon computed at rate of 6 per cent per annum from October 21, 1891,.compounded annually; that this amount with costs of this action, be a general judgment against defendant H. R. Anderson, and further be decreed a lien on the realty described in the petition; that all equities of redemption be foreclosed ■ and said realty, or so much thereof as may be necessary to satisfy said finding and judgment and all costs of this suit, be sold and that a special execution or fieri facias .be issued accordingly. ■
