Davis v. Land

Henry, C. J. This is a suit in ejectment to recover possession of lot 27 in James’ addition to the town of Carthage. On his application Dermott was made a defendant, Land being in possession of the premises as his tenant. Their answer is a general denial. The cause was taken to the Barton circuit on a change of venue, and on a trial thereof plaintiff obtained a judgment from which defendants have appealed. Plaintiff claims title under attachment proceedings against Thomas Phillips, to whom the lot was conveyed by deed by one Maher, August 15, 1875, which was recorded on the nineteenth of the same month and year. Plaintiff’s cause of action in the attachment suit accrued on the eleventh of November, 1875. When the attachment suit was instituted, but not when plaintiff’s cause of action accrued, Phillips was living with his family on the premises and remained there until 1879. He had, however, sold it to Baker, his father-in-law, in 1877. The grounds alleged for the attachment were that defendant Phillips had fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors, and was about to remove out of the state to-change his domicile. The property in question was Phillip’s homestead, which he acquired before plaintiff’s cause of action accrued ; and by the statute, section 2695, that was acquired when he filed his deed for record in the recorder’s office.' When the attachment [439] suit was instituted,' Phillips with his family occupied the premises as a homestead. It was subject to attach - .ment and execution “upon all causes of action existing at the time of acquiring such homestead.” No fraud upon creditors can be perpetrated by any disposition the debtor may see proper to make of his homestead. It is beyond their reach, both at law and in equity, and there can be no fraudulent disposal of such property within the meaning of the attachment law. Nor did the existence of an intent to remove afford any ground for an attachment against him, with respect to this property. Until such an intent culminates in the abandonment of the property by the owner of the homestead, the creditors have no concern or interest in it, and if before he removes he sells the property, as under the statute he may, they have no right to run an attachment or execution against it, no matter for what purpose or on what consideration he conveyed it. It is unnecessary to consider the other questions discussed in briefs of counsel, since this is decisive of the controversy. The judgment of the circuit court is reversed. All concur.