Morrow v. Zane

[117] OPINION. FARRINGTON, J. It is readily seen from' the foregoing statement that plaintiffs had a judgment against the defendant and that an execution had been issued thereon. There is no reason apparent why the court should have quashed the execution because the judgment gave the plaintiffs the right to an execution. Plaintiffs contend that because of F. H. Zane’s action in the bankruptcy proceeding, with reference to his statement as to the homestead, he had thereby claimed his homestead, and having done so, that defendant is not protected under section 8304, Revised Statutes 1909, providing that “a married woman may invoke all exemption and homestead laws now in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property.” His act in the bankruptcy court cannot be construed as a claim or designation of his homestead because he did not own the property in August, 1913, when he went’into bankruptcy, having conveyed all his interest in and to the eighty acres to his wife in May, 1913. The most that can be said of that act is that he attempted to claim a homestead in his wife’s property, which of course he could not do, and it was therefore a nullity. As to his curtesy he made no claim. And we would hesitate to hold that' the claim by a husband of a homestead on account of his curtesy right would thereby defeat his wife’s right to thereafter claim a homestead in the fee which she owned to the same property under section 8304, Revised Statutes 1909; this, because his property right of curtesy is merely derivative. While the trustee in bankruptcy treated it as F. H. Zane’s property and set it off to him, Zane’s act was no more than an interpretation which he chose to put upon his previous act, doubtless to show the bank [118] •ruptcy court that at that time he had. no property which he could claim as a homestead exemption. He must have had title to have claimed the homestead. This is decided in the case of Kennedy’s Admr. v. Duncan, 157 Mo. App. l. c. 221, 137 S. W. 299, where a number of cases are reviewed involving this question. We therefore rule this point against the appellants and hold that Zane’s declaration or explanation in the bankruptcy proceedings did not preclude the defendant from claiming the homestead exemption in any property that she had which was subject to such claim. Now when this levy was made under the judgment against her, she owned an estate by the entirety in the eighty acres which she had acquired prior to December 26, 1912. Such interest was one in which she could claim a homestead exemption. Besides this, she had acquired her husband’s estate by the entirety in the same land, subsequent to the making of the debt on which the judgment was rendered, and hence it was not exempt from the execution and levy made under this judgment. Section 6711, Revised Statutes 1909, makes a homestead subject to levy and execution upon a cause of action existing at the time of acquiring the homestead. In this case, the cause of action came into existence on . December 26, 1912, and she acquired her husband’s interest in the eighty acres and recorded her deed thereunder on May 17, 1913. This estate which she acquired from her husband on May 17,1913, is subject to sale under execution. [Hall v. Stephens, 65 Mo. 670; Johnston v. Johnston, 173 Mo. l. c. 114, 73 S. W. 202; Nold v. Ozenberger, 152 Mo. App. l. c. 444, 133 S. W. 349; Atkison v. Henry, 80 Mo. l. c. 153; Hoffman v. Nolte, 127 Mo. l. c. 136, 29 S. W. 1006.] Taking either horn of the dilemma it necessarily follows that if the husband did claim a homestead by his deed to her and the recitation thereof in the bankruptcy proceeding, then as to her interest in the land acquired November 29, 1912, she could not claim under [119] section 8304, Eevised Statutes 1909. On the other hand, if he did not claim a homestead by his declaration in bankruptcy, and we have so held, then she can claim a homestead, but as to this judgment her claim would only exempt that property which she owned' when she signed the note and not that which she acquired since; and it would make no difference from whom she acquired the property. She now owns all the land and owes a judgment. The estate in the land acquired on May 17, 1913, is subject to the levy made under the execution and cannot be claimed as a homestead as against such execution and levy made thereunder. The court therefore erred in quashing the execution and levy made thereunder. In acting on defendant’s motion the court should have made an order staying the sale as advertised', and ordered and directed the sheriff to limit the levy to the estate in the land which was acquired on May 17, 1913, and permitted him to proceed to a sale thereof. ■ The judgment is reversed and the cause remanded, to be proceeded with in accordance with the views herein expressed. Robertson, P. J., and Sturgis, J., concur.