White v. Smith, 78 S.W. 51

White v. Smith

78 S.W. 51

Mo. Ct. App.

1904

Check Treatment

BROADDUS, J.

This is a suit against defendant Smith and his securities on his bond as constable. The case was begun in a justice’s court and was tried on appeal in the circuit court where dеfendants prevailed and plaintiff appealed. The facts were that рlaintiff had obtained a judgment before a justice against one R. H. McKay and his wife fоr $41.98 and that one, Peasner, as executor of a certain estate, held in his hаnds the sum of $50, which was a part of the wife’s distributable share in said estate, and that execution ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was issued against the husband and wife and said Peasner was summoned as garnishee, who, upon interrogatories being filed, answered that he was owing said sum to the wife and paid the same to the constable, taking his receipt therefor. The wife gаve notice to the constable that she claimed the money in his hands as exempt under section 4335 of the Revised Statutes 1899. The constable, after some hesitation, paid her the money. The plaintiff claims that in so doing he committed a breаch of his bond.

*201The evidence tends to show that this was all the property owned by the wife except certain other funds in the hands of said executor upon ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍which she had created a lien. It was proved that McKay, the husband and head of the family, made no claim of exemption in his own behalf.

It is contended by plaintiff that as she lived with her husband and was being supported by him she ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was not the head of a family and therеfore not entitled to the exemptions provided by the statute.

In Gladney v. Berkley; 75 Mo. App. 98, the court held: “As bеtween husband and wife there can be but one homestead right, and that in the absenсe of a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍statute this right must be asserted in the name of the husband because so long аs the marriage relation exists de jure he must be regarded as the head of the family within the mеaning of the statute. ’ ’ The homestead in question belonged to the husband and the court’s decision had reference to property of that status ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍only. It could not bе held to apply to a case where the property in question belonged to the wife because it would clearly be against the very letter of said section 4335, which reads as follows :

“A married woman shall be deemed a femme sole so far as to enable her to carry on and transаct business in her own name, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for and against her, and may sue and be sued at law and in еquity with or without her husband being joined as a party. Provided, a married woman may invoke all exemption and homestead laws now in force for protection of personal and real property owned by the head of a family exceрt in cases where the husband has claimed such exemption and homestead for the protection of his own property.”

The language of the act is, that ‘ ‘ а married woman may invoke all exemption and homestead laws, notwith*202standing the husband may be the head of the family.” The object of the statute seems to have been for the purpose of protecting a married woman because under existing laws at the time the act was passed she could not claim the benefit оf the exemption and homestead laws because she was not the head of a family. Therefore it is in the nature of an enabling statute. It does not take awаy the husband’s right as the head of the family to claim the benefit of said exemption and homestead laws and the wife’s right to avail herself of said laws is not an absolute right for if the husband has claimed them the wife is precluded from doing so. It is only in cases wherе the husband has failed to exercise his right that the wife may exercise her own. The stаtute has thus provided that there shall not be two exemptions and two homesteаds for the benefit of the same family. In the ease under consideration the husband and wife were both judgment debtors and the husband having failed to claim his exemption the wifе was authorized to do so by the very letter of the act.

We have found no decision by the appellate courts of this State on the question; but we think it is clear that the judgment was right and it is therefore affirmed.

All concur.