Pearman v. McKee

BOND, J. J. T. McKee executed a deed of trust to E. S. Heffernan to secure a debt of $642. The deed was dated in 1887 and conveyed the homestead of the grantor. In March, 1898, an execution on a judgment for $1,118 against McKee, was presented to him for payment. He replied to the sheriff that he (McKee) had no property subject to levy, whereupon the sheriff returned the execution without a levy. About this time the trustee at the request of the holder of the note sold out the property conveyed to him, realizing upon such sale enough to pay the debt secured and a balance of $1,475. McKee claimed this as exempt, being the proceeds of a sale of his homestead, against a garnishment on the aforesaid judgment, which was served upon the trustee. The foregoing facts were set up in an interplea filed by McKee under the order of the court made after the answer of the garnishee praying an interpleader. The garnishee demurred to said inter-plea. His demnrrer was sustained. The interpleader declining to plead further, judgment was rendered dismissing his interplea, whereupon he appealed to' this court. Exemption The sole question presented is whether or not the owner of a homestead, who has mortgaged it, is entitled to recover the surplus proceeds of a sale under the mortgage to the extent of the statutory limitation of the 213 value of a homestead ? Under the law of this state the owner of a homestead which has been mortgaged is entitled to that exemption in the value of the property over and above the mortgage debt, provided his claim is asserted in the statutory method prior to the foreclosure of the mortgage; R. S. 1889, sec. 5437; State ex rel. v. Mason, 88 Mo. 222. It has, however, been expressly decided that the above right in no wise entitles the owner to an exemption in the surplus proceeds of a mortgage sale of the homestead. Casebolt v. Donaldson, 67 Mo. 308; Woerther v. Miller, 13 Mo. App. 567. This is the case we have before us. We must therefore hold that there was no error in the ruling of the trial court, and its judgment is affirmed. Judge Bland concurs; Judge Biggs dissents.