Stewart v. Stewart

65 Mo. App. 663 | Mo. Ct. App. | 1896

Ellison, J.

Plaintiff obtained a judgment against defendants and had an execution issued thereon by the clerk of the circuit court. The sheriff levied upon and sold one acre of land as the property of defendants. Afterward the defendant Stewart filed his motion in the circuit court to set aside the sale aforesaid on the ground that the sheriff had not notified him of his exemptions under sections 4902, 4903, 4906, as required by section 4907, Revised Statutes, 1889, he being the head of a family. The court overruled his motion and he appealed.

It does not appear that Stewart occupied the land as a homestead, and his claim is that he was entitled to hold it as exempt in lieu of the property mentioned in the first and second subdivisions of section 4903, which he did not have. It does, however, appear that before the levy he had sold and conveyed the land to A. H. Sanders. Under these facts, the court properly overruled his motion to set aside the sale. The property not being a homestead, was not exempt from levy and sale, except it became so by his selection of it in lieu of the said subdivision of section 4903. It was his personal privilege to make such selection and when he parted with the property, he parted with the right to select and make it exempt in lieu of other property. If the land had been a homestead and thus specifically exempted by the statute, he, or his grantee, might have made the claim now set up. But not being so and only becoming exempt by selection, that selection can not be made after he has sold the property. Eor, in such case, he has parted with all interest in the property before his claim arose.

We think the case falls within the reasoning of the court in the cases of Alt v. Bank, 9 Mo. App. 91; Hombs v. Corbin, 20 Mo. App. 507; and Stotesbury v. Kirtland, 35 Mo. App. 148.

The judgment will be affirmed.

All concur.