Peake v. Cameron

Sherwood, P. J. — Ejectment brought in 1886 for a lot in Carthage. The separate answers of the defendants were general denials. Cameron, one of the defendants, was in possession of the lot at the time of suit brought, as tenant of Gaither, who was made a party defendant on his own motion. The salient facts in which this litigation arose are as follows : One McGregor conveyed the lot in controversy to one Mary Green, wife of H. P. Green. This conveyance was made May 21, 1881, and recorded June 2, next thereafter. This conveyance was made at the instance of the husband, the purchase money being furnished by him, and was made to defraud his creditors. At that time Green was indebted to plaintiff as evidenced by a promissory note for $436.98, dated September, 1871, on which note were several credits for payments made thereon during the year 1881. Green and wife and family were in possession of the lot when the same was attached at the suit of Garrett & Gilliland on December 21, 1882, for groceries sold to Green in that year. What was the ground of this attachment does not appear. On the same day plaintiff also had the same lot attached at his suit, and it would seem this attachment was levied after the' levy of the one already mentioned. Judgments by default were duly rendered in each case, and on the twelfth of March, 1884, the said Peake commenced suit in equity in said court against said [573] Green and wife, to which suit neither Garrett, Gilliland nor Gaither were made parties, to subject the said lot to sale for the payment of his said note on the ground that it was conveyed to her in fraud of his rights as an existing creditor of Green, which suit was duly prosecuted and a decree rendered therein at the March term, 1885, declaring the conveyance to Mary M. Green fraudulent as to Peake, and that the said property was trust property in her hands, and decreeing a sale thereof to satisfy the said judgment in favor of Peake, upon which decree an execution duly issued and the property was sold at the October term following by the sheriff and bought by the plaintiff, to whom a deed was executed by that officer. The lis pendens was filed March 12, 1884, and on the thirteenth of March, 1884, the property was sold under execution in favor of Garrett & Gilliland, and purchased by the defendant Gaither, for $210, and on the twenty-fourth of July, 1884, defendant Gaither procured a general warranty deed from Green and wife for the lot, for which he paid them .$800. The lot was sixty by one hundred and ninety feet in size, and worth not more than $1,500, and was occupied by Green and his family as a homestead until they sold it to defendant Gaither, when they surrendered the possession to him. Possession was admitted by the defendants and it was agreed that the rental value of the property was $8 per month. The cause was tried without the intervention of a jury, and among the declarations of law given at the instance of the plaintiff was this one: “A homestead is absolutely and unconditionally exempt from attachment while occupied as such, as to all causes of action arising after the acquisition of such homestead, and the filing of the deed thereof for record, in the proper county, and any levy or attempted levy of such attachment is void.” [574] The court found for the plaintiff, and the defendants have appealed from the judgment rendered. It is quite immaterial to inquire whose attachment had priority of levy on the lot in suit, because as to the plaintiff, the prior creditor of Green, there was no homestead to obstruct the operation of his writ of attachment, and the proceedings subsequent thereto ; and because as to Garrett & Gilliland, the subsequent creditors, there was a homestead upon which, according to express statutory provisions and prohibitions, no attachment or execution could bedevied. R. S. 1879, secs. 2695, 2689; Vogler v. Montgomery, 54 Mo. 577. Under the. operation of such specific and stringent statutory provisions, the attachment writ of the first levying but subsequent creditors had no more force or effect in law, upon the homestead lot, than would a writ of ca. sa. for debt upon the debtor’s person. And the lot being visibly occupied by Green and family as a home, this was a sufficient and the usual assertion of a homestead right therein. Thompson on Homesteads, sec. 230. Even where the statute requires that the debtor, make claim of homestead where it is levied on, it has been held that such statutes are but directory. Thompson on Homesteads, sec. 639. This is especially true in the present instance, where, as here, the property did not exceed in extent or value the limit fixed by law for a homestead. In such case the most apt method of designating a place as a homestead would be the visible occupancy of the property as a homestead in fact. Thompson on Homesteads, secs. 652, 653. Nor are these views at all affected by reason of the circumstance that the deed was made to the wife instead of the husband. There are numerous authorities on this point. Dreutzer v. Bell, 11 Wis. 114; Orr v. Shraft, 22 Mich. 260; Crane v. Waggoner, 33 Ind. 83; Porter v. Stewart, 50 Miss. 727; Thompson on Homesteads, secs. 220, 221, 222, 224. [575] As to Gaither, the purchaser at the first execution sale and the subsequent purchaser from Green and wife, the horizon of his legal rights was not more expanded than those under whom he thought to derive title. These views result in affirming the judgment. Black and Brace, JJ., concur; Babolay, J., not voting.