Kendall v. Powers

Black, J. This suit of ejectment was commenced on the fourteenth of November, 1884, to recover the possession of several lots in the town of Linneus, containing in all about an acre and a half of land, and valued at five or six hundred dollars. The facts are these : On the thirty-first of December, 1881, the plaintiffs obtained a judgment against C. Gr. Cummins for $787.09, under which the property was sold on execution and purchased by the plaintiffs on the twelfth of June, 1884. At the date of the judgment, Cummins had a wife and six children. He then and for a long time previous thereto resided on the property. On the twenty-second of November, 1881, a few days before the date of the judgment, he and his wife conveyed the property to Crampton, who at the [145] same time conveyed it back to Mrs. Cummins, and she died on the same day. In March, 1884, Cummins and his second wife conveyed the property to the defendant,, and at the same time Cummins, as curator of his children, conveyed, or attempted to contey, their interest in the property to defendant. There is evidence tending' to show that these deeds were made as a security for money loaned Cummins ; other evidence is to the effect' that the transaction was an out and out sale, with a. right on the part of Cummins to re-purchase the property, if he desired to do so. A few days after the execution of these last-mentioned deeds, Cummins, with his family, went to the state of Kansas, returning in December, 1884. There is evidence that he left with the intention of returning, as he did. He re-purchased the property and took possession after the commencement of this suit. The plaintiffs do not seek to avoid the deeds or any of them for fraud or otherwise ; but they insist that after the death of Mrs! Cummins, her husband had an estate by the curtesy in the property, and that the lien of the judgment attached to that estate. The deed to Crampton and from him to Mrs. Cummins simply vested the title in her. Mr. Cummins was all the while the head of a family, and he continued to reside with his family in the property until a few days after the sale to the defendant, and the property was his homestead during all that time. The law exempts from execution and attachment the homestead of every housekeeper or head of a family. The husband as the head of a family may have a homestead in a life* estate, or in property, the title to which is in the -wife. Thomp. on Homesteads, sec. 220. It was the same homestead all the while. The exemption is in no way affected by the fact, that during the time Cummins occupied the property with his family, the title became vested in his wife, nor by the fact that upon the death of his wife he became [146] entitled to an estate by the curtesy. Whether the debtor owns the fee, or has but a marital interest in the property, or a life estate, is a matter of no concern to the creditors, the debtor being the head of a family and the property his homestead. Be the interest whatever it may, it is exempted from sale under execution. While the property stood exempt from sale under execution, Cummins could sell his interest therein and the purchaser would take whatever title he had free from any claim of the judgment creditor. Davis v. Land, 88 Mo. 436. What has been said disposes of all the questions raised in this court. The judgment is, therefore, affirmed. Ray, J., absent; the other judges concur.