Rouse v. Caton

BRACE, P. J. — The defendants in this case are Luke T. Catón and his two sons, Leo T. Oaton and Harry L. Oaton. By deed dated August 26, 1895, acknowledged September 5, 1895, and recorded on July 20, 1896, the said Luke T. Catón and wife conveyed to the said Leo T. Oaton and Harry L. Oaton the east half of the southeast quarter and the southwest quarter of the southeast quarter of section 16, and the northeast quarter of section 21, in township 58, range 18, in Linn county, containing 280 acres. On July 23, 1896, the plaintiff, J. W. Rouse, instituted a suit by attachment in the circuit court of said county against the said defendant, Luke T. Oaton, which was duly levied on said lands, and which was thereafter duly sustained, and therein on April 26, 1897, the plaintiff obtained judgment against the said Luke T. Oaton in the sum of $4,600.57 and costs. In pursuance of an execution issued on this judgment, the said real estate was duly sold, and the plaintiff became the [294] purchaser thereof for the sum of $2,000, received a sheriff’s deed therefor, and thereafter instituted this suit. The petition is in two counts. The first in the nature of a bill in equity to set aside said deed of Luke T. Oaton of date August 26, 1895, on the ground that it was made without consideration, and for the purpose of hindering, delaying and defrauding his creditors, and the second, in ejectment, to recover possession of the premises. The finding on both counts was in favor of the plaintiff, and defendants’ motion for rehearing and a new trial having been overruled, they bring the case here by writ of error. The facts of this case, so far as they can be made out from the imperfect transcript of plaintiff in error, which contains but a fragment of the evidence, eked out by that of the defendants in error, seem to be about as follows: In 1890 Luke T. Caton was the owner of the 280 acres of land in controversy, which, in connection with another 40-acre tract, the title to which was in his wife, constituted his home place, on which he resided with his family. He owned other lands and a one-half interest in a saloon in the town of Bucklin, some two or three miles distant from his home farm, and some personal property. He was then in comfortable circumstances and entirely solvent. In the fall of that year he and his wife signed and acknowledged a deed conveying the home farm to one John C. "Whittaker, and a .few days thereafter the said Whittaker signed and acknowledged a deed conveying said premises to Fannie Oaton, the wife of the said Luke T. Oaton, and his two sons Leo. T. Oaton and Harry L. Oaton. These deeds were never recorded, and remained in the possession or under the control of said Luke T. and his wife from the time they were so signed until they were produced on the trial of this cause. At the time these deeds were so signed and acknowledged, his son Leo was aged about twenty years, and his son Harry was about nine years old. It is conceded that these deeds were [295] without valuable consideration. As counsel for defendants say in their brief, “This roundabout transaction was only to avoid a direct conveyance to the wife.” Afterwards the deed in controversy, conveying the 280 acres aforesaid, to the said Leo. T. and Harry L. Oaton, was signed by the said Luke T. Oaton and wife and acknowledged on the fifth day of September, 1895. This deed was also without any valuable consideration, and remained in the possession and under the control of the said Luke T. and his wife until it was filed for record on the twentieth of July, 1896. Up to the time of the filing of this deed for record, Luke T. Oaton always claimed and treated this land as his own, gave it in to the assessor, paid the taxes on it and incumbered it by mortgage and was considered by everyone dealing with him as its owner, and neither Leo T. or Harry L. ever made any claim or ownership to it. In the spring of 1891, Luke T. Oaton with his family, except his son Leo, moved from his home farm to the town of Bucklin, distant two or three miles therefrom, where he and his family continued thereafter to reside until about the middle of May, 1897, when they moved back to the home farm. In the meantime, Leo was left in charge of the farm, its stock and equipment, with the understanding between him and bis father that he should run the place, and if anything was made in operating it he should have the profits. On removing to Bucklin, Luke T. Oaton purchased an interest in a flouring mill in operation there, and other property, and after renting for a short time, purchased a dwelling house and lot on the third of August, 1891, into which he then moved, with his family, and where thereafter they continued to reside until about the middle of May, 1897, when he returned to the farm. The purchase money for this homestead was paid by Luke T. Oaton, but the deed was taken in the name of his wife and duly recorded December 16, 1893. Thus the said Ltike T. Oaton continued living with his family in this home* [296] stead in Bucklin, carrying on his farming, milling and saloon business from the spring of 1891 until the fall of 1895, during which time he incurred an indebtedness in excess of the value of all his property, and became insolvent. It was under these circumstances that the deed in question was thereafter made. The plaintiffs debt was one of the many incurred by him during this period on the faith of his ownership of this 280 acres of land in question, and other lands, as shown by the records. No error is assigned upon any action of the court in the trial of the case. But a reversal of the decree and judgment is urged on the grounds: First. That Luke T. Catón had a homestead in this land which was not set off to him before the sale under the execution, hence, under the rulings of this court in Macke v. Byrd, 131 Mo. 682; Ratliff v. Graves, 132 Mo. 76, and Creech v. Childers, 156 Mo. 338, the sale was void. This contention is not tenable. At the time when the indebtedness of Luke T. Catón to the plaintiff was incurred, when he was sued thereon by attachment and the writ levied on the premises, and even 'when judgment therein was rendered against him, he was living with his family on his homestead in the town of Bucklin. This was none the less his homestead (as he declared he intended it to be at the time he purchased it) because he took the deed thereto in his wife’s name. While he continued to own the farm of which the 280 acres sold under execution was a part and in which he formerly had a homestead, he had abandoned it as a homestead in 1891, and as against the rights which had accrued to the plaintiff after that time and before his return to it in 1897, he had no homestead right therein. It requires both ownership and occupancy to constitute a homestead, and no head of a family can have two homesteads at the same time, neither can husband and wife while living together each have a separate homestead at the same time. [Thompson on Homestead and Ex., secs. 225, 245 and 246; Freeman on Executions, sec. 248; 15 Am. and Eng. Ency. of [297] Law, pp. 566, 575 and 602; St. Louis Brewing Ass’n v. Howard, 150 Mo. 445; Peake v. Cameron, 102 Mo. 568; Kendall v. Powers, 96 Mo. 142; Bunn v. Lindsay, 95 Mo. 250; Finnegan v. Prindeville, 83 Mo. 517.] Second. That as the amount of plaintiff’s bid- at the sale^ less the costs, was credited on the execution, and no new consideration passed, the plaintiff was not an innocent purchaser, but took his title subject to all infirmities; that the rule of caveat emptor applies, and the unrecorded deeds conveying the 280 acres by Luke T. Catón and wife to Whittaker and from Whittaker to Luke T. Caton’s wife, and his sons Leo and Harry Catón in 1890, when Luke T. Catón was entirely solvent, stand good and valid as against the plaintiff. This is an attempt to protect one fraud by another. It is true, that if the deeds of 1890 had been delivered and recorded, when they were signed and acknowledged, they would have vested Luke T. Caton’s title in the grantees therein named as against subsequent creditors. But, as these deeds were never in good faith delivered for the purpose of vesting title in such grantees, but ever remained either in the possession or under the dominion and control of Luke T. Catón from the day of their date until they were produced on the trial of this cause, until which time neither plaintiff nor any other of his creditors had any notice of their existence, and were purposely kept off of the records, whereby he was enabled on the faith of his ownership of these and other lands, to incur the very indebtedness which he now seeks to defeat by them, they were fraudulent and void as to plaintiff and as to such creditors, passed no title as against the plaintiff, and the court committed, no error in vesting the title inf the plaintiff, and in awarding him the possession of the premises. The decree and judgment of the circuit court will therefore be affirmed. All concur.