Bank of Conception v. O'Donnell

BROADDUS, P. J. This is an appeal from the action of the court in overruling appellants motion to quash an execution. The property levied upon by the sheriff under the execution was a house and lot in the city of Maryville, Missouri, occupied by the defendant and his family, and encumbered by a mortgage for five hundred dollars. The defendant prior to the issuance of the execution conveyed the property to his wife. The defendant acquired the property after the debt was contracted on which the judgment was rendered and under which the execution was issued. The ground for quashing the execution was that the sheriff failed to set off to him the $300 exemption in the property in lieu of other exempt property as provided by the statute. The court overruled the motion and the defendant appealed. The judgment of the court will have to be sustained. Speaking of a similar case, Ellison, J., said: “The [215] property not being a homestead, was not exempt from levy and sale, except it became so by selection of it in lieu of said subdivision of section 4903 (now section 218, R. S. 1909). 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 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 his property. For, in such case, he has parted with all interest in the property before his claim arose.” [Stewart v. Stewart, 65 Mo. App. 663, and cases cited.] Cases cited by appellant apply to homesteads and therefore do not govern the question. Affirmed. All concur.