Citation Numbers: 199 Mo. App. 453
Judges: Ellison
Filed Date: 5/20/1918
Status: Precedential
Modified Date: 7/20/2022
This is an action in equity to subject a certain lot in St. Joseph, Missouri, to the lien of the judgment plaintiff had against defendant Riley. The defendant Mary is the daughter of Riley. The defendant prevailed in the trial court.
We find ourselves not able to understand how plaintiff’s theory of his case can be allowed to affect the fact that the property was Riley’s homestead and in no way subject to the payment of plaintiff’s judgment.
Under the rule in this State the property, notwithstanding Riley may have fraudulently conveyed it to his daughter and afterwards received a deed back from her, was all the time his homestead. His fraud (if any) in respect to the homestead could not affect his right to claim that it was exempt from plaintiff’s judgment. [Vogler v. Montgomery, 54 Mo. 577, 584; Seilert v. McAnally, 223 Mo. 505, 516; Guinan v. Donnell, 201 Mo. 73, 212.]
Nor does the fact that defendant Riley paid off the incumbrance of $480 affect his homestead right. It was his privilege, without interference from plaintiff, to protect his homestead, so long, of course, as he did not increase its value over the homestead right as limited by the statute.
We think that branch of the law not applicable to the facts in the present ease. Here, as we have endeavored to show, defendant Riley had a homestead in the property and the act which plaintiff attacks was an act in preserving such homestead by paying the incumbrance. When he did so, it yet remained his homestead relieved of the incumbrance, and also unaffected by any claim of creditors, so long as the homestead was not increased beyond the limited value. ■
In Cheatam v. Jones, 68 N. C. 153, the court said that “A mortgage is a mere incumbrance upon a man’s land, and given as security for the debts therein set out; and if he can discharge the incumbrance by the sale of the land outside of his homestead, or in any other toay, creditors who are not secured by the mortgage have no ground upon which to deprive him of the homestead secured by the Constitution.” This view of the law is also stated in Waples on Homesteads, 119, and by Thompson on Homesteads, sec. 170. The same things is decided in Butler v. Steinback, 87 N. C. 216, 219.
In Fellows v. Dow, 58 N. H. 21, the court said that “The right to redeem a homestead from a mortgage . . . is an interest of the debtor in the homestead,
In Smith v. Lackor, 23 Minn. 454, an attempt was made by one who had furnished lumber for a house erected on the homestead, to treat Jiis claim as though it were a part of the purchase money which could be enforced against a homestead. But, the court said: “It is. no more a part of the purchase money (of the real estate) than the price of a fruit tree or a fence post, used for the improvement of the property, would be.”
So in any view which may be taken, the ruling of the trial court was correct; and the judgment will be affirmed.