Tennent v. Pruitt

94 Mo. 145 | Mo. | 1887

Norton, C. J.

This suit is by ejectment to recover the possession of certain land in Taney county. The land is described as the west half of the northeast fractional quarter, of section 12, township 22, range 20, being on the right bank of White river, descending. In support of their title, plaintiffs put in evidence a sheriff5 s deed, dated April, 1883, conveying to plaintiffs all the right, title, and interest of defendant, Pruitt, in and to the land in controversy. It appears from this deed that, on the seventh of October, 1881, plaintiffs obtained judgment in the Taney county circuit court against defendant, Pruitt, upon which an execution issued on the tenth of March, 1883, under which the sale was made,, and at which plaintiffs became the purchasers.

Defendant, after admitting that, at the time of the judgment, levy, and sale, he was in possession of the land by a tenant, and cultivating a portion of it himself, undertook to defeat plaintiffs’ right to recover under said sheriff’s deed by setting up that the land was his homestead and not subject to sale for the payment of plaintiffs’ judgment against him. For the purpose of establishing this defence defendant, Pruitt, put in evidence a deed from Haworth and wife, dated August 24t 1875, and recorded September 13, 1875, conveying to him the east half of the northeast quarter, of section 12, township 22, range 20. Also a deed from Haworth and wife, dated October 1, 1884, and filed for record October 7, 1884, conveying to him the west fractional half of the northeast quarter, of section 12, township 22, range 20, this being the land in controversy. It also appeared that at the time of the sheriff’s sale, defendant was living, and for some years previous, had lived, upon one hundred and sixty acres of land about one mile from the land in controversy (the title to which was in his wife as her separate property), but that, at the time of the sale and trial, he was in possession of the land in suit by tenant and cultivation.

The circuit court tried the case, as shown by the instructions, on the theory that, under the above facts, plaintiffs could not recover, and rendered judgment for defendants, from which the plaintiffs have appealed, and among others assign for error the action of the court in receiving in evidence, over their objections, the two deeds offered by defendants. The objections to the admissibility of these deeds were well taken, and the court erred in overruling them. If any question relating to the homestead law is settled, it is, that, before the owner of land can claim it as being exempt from sale for the payment of his debts, on the ground of its being his homestead, it must appear that he occupied it and used it as such, and that the acquisition of the homestead rights, as against creditors, dates from the time of his filing his deed for record. Although he may live upon the land as his home, until he files his deed for record, it is not exempt from seizure and sale for debts contracted prior to the time such deed is filed for record. Farra v. Quigley, 57 Mo. 284; Shindler v. Givens, 63 Mo. 395.

Under the rulings in these cases, the objection made by plaintiffs to the first deed offered by defendants ought to have been sustained, for the reason that it neither conveyed, nor purported to convey, the land in dispute ; and the objection to the second deed ought to have been sustained on the ground that it was neither obtained nor filed for record till after plaintiffs had obtained their judgment against defendant, and became the purchasers of the land under a sale made in virtue of an execution which issued upon the judgment, and brought this suit to recover possession.

The judgment, for the error noted, is hereby reversed and the cause remanded, to be proceeded with in conformity with this opinion,

in which all concur, except Ray, J., absent.