Stinde v. Behrens

| Mo. | Oct 15, 1883

Hough, C. J.

In 1874 the defendants, as husband and wife, occupied, as a homestead, certain property in the town of Atchison, Kansas, the legal title to which, was vested in the defendant, Rudolph Behrens. After the acquisition of said property, as a homestead, said Rudolph became indebted to the plaintiff, and being so indebted, he and his wife, Wilhelmina, in September, 1874, conveyed said homestead to Anna M. Gusching, and in payment therefor, said Anna and her husband conveyed to the defendant, Wilhelmina, in fee, lots 60, 61, 62 and 63, in block 71, in the city of Carondelet, and also, paid to her $600 in money, and assumed a mortgage of $300 on the Atchison property. In 1875 the plaintiff; recovered a judgment against Rudolph Behrens on the indebtedness aforesaid, and at a sale, under execution, issued on said judgment, purchased all the right, title and interest of said Rudolph, in and to. said lots in Carondelet, conveyed to said Wilhelmina, and, thereupon, instituted the present suit to set aside the conveyance of said lots to Wilhelmina, as having been made in fraud of the rights of the creditors of said Rudolph Behrens, her husband, and to invest himself with title thereto. The circuit court rendered judgment for the defendants, which was reversed by the court of appeals.

If the consideration for the property conveyed to Mrs. Behrens was property of her husband, to which creditors had a right to resort for the payment of their debts, then the plaintiff had a right to subject the property, so conveyed to her, to the satisfaction of his judgment; otherwise he had not. By the laws of Kansas, which were in evidence before the referee by whom the cause was heard, Rudolph Behrens could neither convey nor encumber the homestead, which was the consideration for the Carondelet property, without the consent of his wife, although he may have paid the entire consideration for such homestead, and have taken the title in his own name. It was not subject to the debts of either husband or wife, and could only be disposed of with the joint consent of both. What the precise nature of the right or interest of the wife in and to the homestead is, it is unimportant to inquire. The supreme court of Kansas has declared that, although it may be difficult of definition it is, nevertheless, an estate in the land; an existing interest, with the right to immediate enjoyment. Helmv. Helm,, 11 Kansas 19; Coughlin v. Coughlin, 26 Kansas 116. And this right of enjoyment is the right to the enjoyment of the whole estate. And it has been held, in effect, by the supreme court of Kansas, that the conveyance by the wife of her interest in the homestead, is a sufficient consideration for the transfer to her, in her own right, of the proceeds of such conveyance.

Jn the case of Citizen’s Bank v. Bowen, 25 Kansas 117, it appeared that one Bowen and his wife were possessed of a homestead, and mortgaged the same for $1,650, which sum was paid to the wife. Bowen being in debt, and insolvent, his creditors attempted to subject the proceeds of the mortgage, in the hands of Mrs Bowen, to the satisfaction of their demands. The court said: “ Before signing the mortgage, and thus placing property, otherwise exempt, in jeopardy, Mrs. Bowen contracted that the money to be procured on the note and mortgage should be paid to her, as the consideration for the execution of the mortgage on her part. The consideration being sufficient between the parties, the agreement was valid, and when the money was paid to her, or deposited in the bank in her name subject to call, in pursuance of the agreement, the money was the property of Mrs. Bowen, and this without contravening the rights of her husband’s creditors, because by her act it was procured upon a homestead, towards which the eye of the creditor need never be turned.” No question was made in that case as to the relation which the sum realized on the mortgage bore to the value of the property, and the decision of the court seems to have been made independently of, and Avithout regard to, any such consideration. The same ruling would, doubtless, have been made, if the sum reah ized on the mortgage had equalled the value of the estate.

In the case before us, the exchange of deeds Avas made at the homestead of the defendants, and while it Avas being occupied by them as such, and was consented to by Mrs. Behrens upon the express condition that the property to be received in consideration for the conveyance of her homestead, should be conveyed to her. We do not feel called upon to condemn the provident spirit manifested by her in thus stipulating for a home for the family. There is no pretense that the homestead had, in any Avay, been aban-, doued as a homestead, before the exchange took place; at, the time it was sold the defendants were citizens of Kansas, and no statute of Kansas was offered in evidence, nor have Aye been referred to any decision of the supreme court of that state, which holds, that the conveyance of a homestead in Kansas in exchange for property in another state, is such an abandonment of the homestead, or fraudulent disposition thereof, as to render the homestead subject to the claims of creditors. The conveyance of the homestead then being valid, as against creditors, and the interest of the wife therein being such, that she could lawfully stipulate that the proceeds should be paid to her, as and for her OAvn property, it cannot be said that any property which was subject to the demands of creditors, has been withdrawn from their reach, and the conveyance to Mrs. Behrens cannot, therefore, be said to be in fraud of creditors.

The judgment of the court of appeals will, therefore, be reversed and the cause remanded to that court, with directions to enter a judgment affirming the judgment of the circuit court.

All the judges concur.