Meyer v. Nickerson

Barclay, J. The facts of this case, upon which the judgment of the trial court was had, and upon which ours is asked, are conceded. Plaintiff is the purchaser at a sheriff’s sale, had upon execution regularly issued and levied on lands of the defendant. After the levy, a claim of homestead having been made by defendant,' the sheriff, having the execution in charge, appointed appraisers to set apart such homeste’ad of defendant. This they did, and made report thereof in due form, designating the homestead particularly ; .of which facts, and of his subsequent sale of the remainder of the land levied upon, according to law, the sheriff made due return upon the execution. R. S. 1889, sec. 5436. Plaintiff was the purchaser at that sale. Defendant afterwards made a motion to quash the levy and sale so made, but his motion was overruled. The present contention of defendant is that, in estimating and establishing his homestead, regard should have been had to certain incumbrances upon it which the sheriff ’ s appraisers ignored in setting it apart; but the answer to this claim is that, under the statute on the subject and a prior decision of this court, the action of such appraisers, in fixing the boundaries and extent of a homestead, is conclusive on the parties to the cause in which they have so acted, when their action [188] in that cause becomes final. Lallement v. Detert, 96 Mo. 182. Under sections 5436 and 5437 (R. S. 1889), it is, obviously the duty of such appraisers, and the right of every execution defendant, to have any existing incumbrance taken into account in locating such homestead and determining its extent. State ex rel. v. Mason, 88 Mo. 222. If this is not done, the remedy of the execution defendant is to proceed by motion, in the same cause, to have it done. If he does not thus directly attack such designation of his homestead, he cannot afterwards, in a collateral proceeding, have the action of the appraisers reviewed. It follows, therefore, that the judgment of the trial court was for the right party on the conceded facts. It is accordingly affirmed, with the assent of all the judges.