heirs and devisees they are, under and by virtue of his last will and testament, * * and upon the condition precedent as herein set out, and in consideration of the sum of ore dollar ($1.00) to them paid by Joseph Lamertine Hudspeth, * they have granted, bargained, sold and transferred, and do by these presents, grant, bargain, sell and transfer, unto the said Joseph Lamertine Hudspeth, upon the terms and conditions bereinafter set forth," certain property, amounting to 120 acres, and covering the 70 acres here in dispute. The deed contained the following further provisions: "This conreyance being made upon the express condition that the above described real estate shall not be liable to any debts that the said Joseph Lamertine Hudspeth may now have, or that he may contract during the period of thirty years from the date hereof. And the said Joseph Lamertine Hudspeth shall have no right, power or authority to, in any manner, sell, incumber or dispose of said real estate or any part thereof for the period of thirty years from the date hereof, except to dispose of the same by his last will and testament. After the expiration of said thirty years, as aforesaid, said real estate shall vest absolutely in the said Joseph Lamertine Hudspeth, free and clear of all the conditions berein named, to use and enjoy and dispose cf in any manner he may deem proper. The said Joseph Lamertine Hudspeth to have the use and enjoyment and the income therefrom from this date upon the terms and conditions above named. But should he sell, or attempt to sell or incumber, said premises at any time during the said thirty years, then in that event the title to the above-described premises shall immediately vest in the said first parties, their heirs or assigns." The plaintiffs offered in evidence the sheriff's deed under the judgment aforesaid. The defendants objected to the introduction of the deed upon two grounds: First, because the deed does not show on its face that the law in reference to the setting apart of a homestead had been complied with; and, second, that the judgment under which execution was issued was not a final judgment, and therefore the clerk had no right to issue the execution. The court overruled the objection, and the defendants saved exception. The sheriff's deed showed that commissioners were appointed to set out the homestead of the defendant Hudspeth, and that they did set apart to him 50 acres of the tract as a homestead, and that the remaining 70 acres were sold to the plaintiffs. The plaintiffs also offered in evidence the amended petition in the case wherein the judgment aforesaid was rendered, which showed that the plaintiff Kessner was the wife of Joseph W. Kessner, and that the defendant Hudspeth had willfully shot and killed him, for which she sued for $5,000 damages. The plaintiffs also showed the rental value of the land, and then rested. On their behalf the defendants offered in evi

dence a certified copy of the judgment aforesaid, which also contained a recital of the fact that the defendants had filed motions for new trial and in arrest of judgment. The record did not show affirmatively that said motions had been overruled or acted upon. The plaintiffs objected to the introduction of the said certified copy of the judgment on the ground that the defendants' answer admitted that the judgment was a final judgment, and, further, because the certified copy did not purport to be a copy of the whole record or proceedings in the case. The court sustained the objection, and excluded the record on the ground that the defendants' answer pleaded the judgment as a final judgment and the plaintiffs' reply admitted the same. The defendants excepted to the ruling of the court. The defendants then offered in evidence the will of Robert N. Hudspeth, which, so far as is material here, devised the property in controversy to the brothers and sister of the testator absolutely, as stated. The defendants then called Edward P. Gates, one of the attesting witnesses to the will, and over the objection of the plaintiffs the court permitted him to testify that at the time the testator executed the will he apprehended some difficulty, which might result in his sudden death. But the witness testified that no such occurrence took place, and that the testator lived a number of years afterwards. The defendants also called Mrs. Malinda Wood, née Bell, the sister of the testator, and one of the grantors in the deed to the defendant Hudspeth, and over the objection of the plaintiffs the court permitted her to testify that she and her brothers executed the deed to the defendant Hudspeth in conformity to the verbal direction of the testator that they should convey the property to the defendant Hudspeth, and should fix it so that it could not be taken for his debts for a period of 30 years, and so that he could not alienate it. She further testified that the defendant Hudspeth paid nothing for the land. This was all of the testimony in the case. As before stated, the trial court entered a judgment for the plaintiffs, and after proper steps the defendants appealed.

1. The crucial question in this case is what interest the defendant Hudspeth had in the land in controversy. The defendants contend that Robert N. Hudspeth, by verbal directions to his brothers and sister, created a spendthrift trust for the defendant Hudspeth, and that said brothers and sister ef fectuated the trust by the execution of the deed to him, and that the proper construction of that deed is that the land could neither be alienated by the defendant Hudspeth or taken in invitum by his creditors until the expiration of the period of 30 years limited in the deed, and hence that the sale of the land under execution to the plaintiffs was void, and conveyed no title. On the other hand, the plaintiff's contend that an express trust in land can only be created, under the

statutes of this state, in writing, and that the deed of the defendant Hudspeth is in no sense the creation of a spendthrift trust, and only limits the sequestration of the land for debts contracted by Hudspeth, and does not prevent the land from being sold to satisfy a judgment based upon a tort of said Hudspeth. In view of the conclusion herein reached, it is not necessary to follow the able and ingenious argument of counsel in reference to the creation of an express trust by the verbal direction of the donor and the subsequent written declaration of the trustee or grantee. The doctrine of spendthrift trust is recognized in this state. McIlvaine

v. Smith, 42 Mo. 55, 97 Am. Dec. 295; Partridge v. Cavender, 96 Mo. 457, 9 S. W. 785; Lampert v. Haydel, 96 Mo. 439, 9 S. W. 780, 2 L. R. A. 113, 9 Am. St. Rep. 358; Pugh v. Hayes, 113 Mo. 424, 21 S. W. 23. But whether a conveyance created a spendthrift trust is always the question primarily for consideration. A "spendthrift trust" is the term commonly used to designate a trust created for the maintenance of the cestui que trust and to secure the fund against the improvidence of the cestui que trust. The English rule, which has been adopted in most of the states of this Union, is that it is against the policy of the law for the grant to be so limited thata donee shall have the possession and enjoyment of the property, but shall not have the power of alienation, or that the property shall not be liable for his debts. Under the English law it is competent to make the estate determinable, as upon the bankruptcy of the donee, in which event the estate is to revert to the donor, or to some person specified in the grant. In such case the creditor is deprived of the estate by the act which deprives the donee thereof. But where no such provision for the determination of the estate is contained in the grant the property will pass to the assignee in bankruptcy. The American doctrine differs from the English rule, and is thus stated in 26 Am. & Eng. Enc. of Law [2d Ed.] p. 139: "This doctrine is that it is lawful for a testator or grantor to create a trust estate for the life of the cestui que trust, with the provision that the latter shall receive and enjoy the avails at times and in amounts either fixed in the instrument or left to the discretion of the trustee, and that such avails shall not be subject to alienation by the beneficiary nor liable for his debts." The most learned discussion of the subject and of the difference between the English and the American, doctrine is that of Mr. Justice Miller in Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254. The Am. & Eng. Enc. aforesaid, at page 140 et seq., has collected the arguments pro and con bearing upon the two doctrines, but it is not necessary to the determination of this case to pursue the inquiry further. In order to create a spendthrift trust certain prerequisites must be observed, to wit: First. The gift to the

*

donee must be only of the income. He must take no estate whatever, have nothing to alienate, have no right to possession, have no beneficial interest in the land, but only a qualified right to support, and an equitable interest only in the income. Second. The legal title must be vested in a trustee. Third. The trust must be an active one, not a mere dry trust, which may be executed under the statute of uses. 26 Am. & Eng. Enc. of Law [2d Ed.] p. 142 et seq.; McIlvaine v. Smith, 42 Mo. 55, 97 Am. Dec. 295; Partridge v. Cavender, 96 Mo. 457, 9 S. W. 785; Lampert v. Haydel, 96 Mo. 439, 9 S. W. 780, 2 L. R. A. 113, 9 Am. St. Rep. 358; Kingman v. Winchell (Mo.) 20 S. W. 296; Ehriswan v. Sener, 162 Pa. 577, 29 Atl. 719; Keyser's Appeal, 57 Pa. 236; Rife v. Geyer, 59 Pa. 393, 98 Am. Dec. 351; Upham v. Varney, 15 N. H. 462; Lear v. Leggett, 2 Simons, 479; Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504; Bank v. Davis, 21 Pick. 42, 32 Am. Dec. 241. "On the other hand, where the cestui que trust has an absolute right to the fund or its avails, such as a right to keep the land and to receive the income therefrom, or where it is absolute property, and may therefore be alienated by him," to where the land is conveyed upon a simple condition that it shall not be subject to the grantee's debts, no spendthrift trust arises or is created, and the donee's interest may be sold under execution, or sequestrated in equity. 26 Am. & Eng. Enc. of Law (2d Ed.) p. 144; 1 Jones on Real Property, § 663; Gray's Restraints on Alienation, § 259; Potter v. Merrill, 143 Mass. 190, 9 N. E. 572; Maynard v. Cleaves, 149 Mass. 307, 21 N. E. 376; Smeltzer v. Goslee, 172 Pa. 298, 34 Atl. 44; Young v. Easley, 94 Va. 193, 26 S. E. 401. The deed to the defendant Hudspeth, here involved, falls radically short of the requirements of the rule as to the creation of spendthrift trusts, and especially so in the following particulars: First, no trust estate is created; second, no trustee is appointed; third, Hudspeth's interest is not limited to the enjoyment of the income, nor is his right simply a right to support; fourth, an absolute estate in fee simple is vested in Hudspeth; fifth, Hudspeth is given the right of possession, of managing and controlling the property, and of receiving the whole income therefrom without let or hindrance. In short, the conveyance to Hudspeth is of the whole legal title, with all the incidents and rights appurtenant thereto, with only a futile attempt to annex repugnant conditions thereto to the effect that the land shall not be liable for the payment of any debts he had or might thereafter contract during a period of 30 years, and that he should not have power to sell, incumber, or dispose of the property for a like period except by will, and with the further qualification that if he sold, or attempted to sell or incumber, the property during that period, the title

shall immediately vest in the grantors. Ever since the statute of quia emptores was enacted, the rule of law has been that, "after an absolute conveyance in fee simple, a clause providing that the grantee shall not mortgage or dispose of the property is repugnant and void." Lawrence v. Singleton (Tenn.) 17 S. W. 265; Hall v. Tufts, 18 Pick 455; Gleason v. Fayerweather, 4 Gray, 348: Walker v. Vincent, 19 Pa. 369; Laval T. Staffel, 64 Tex. 370. So, also, "a condition that land conveyed shall not be subject to the grantee's debts is in restraint of alienation and void. Notwithstanding such condition, the land is subject to levy on execution, and passes to an assignee in bankruptcy. Liability for debts is an incident of property, just as the right to convey it is." 1 Jones on Real Property, § 663. In Tillinghast v. Bradford, 5 R. I. 205, Ames, C. J., said: "Certainly no man shall have an estate to live on, but not an estate to pay his debts with. Certainly property available for the purpose of pleasure or profit shall be also amenable to the demands of justice." It follows that the deed in question, whether executed in pursuance of either a written or verbal direction of Robert N. Hudspeth or by the grantors of their own motion, wholly fails to create a spendthrift trust. Taless, therefore, the conditions annexed to the absolute grant are sufficient and legal, the land in question was subject to the debts of the defendant Hudspeth.

The defendants tacitly concede that such general limitations, even with a provision for cesser, cannot have the effect in law of eutting down the absolute grant, or of withdrawing the property from the reach of the grantee's creditors; but they contend that it is legal to limit the right, of the grantee in fee simple to convey, mortgage, or dispose of the property, and likewise to prohibit it from being seized by the grantee's creditors, for a limited period of time. In support of their contention the defendants cite and rely upon 2 Washburn on Real Property (5th Ed.) F. 9; McWilliams v. Nisley, 7 Am. Dec. 654; Langdon v. Ingram's Guardian, 28 Ind. 360; Stewart v. Brady, 3 Bush (Ky.) 623; Stewart T. Barrow, 7 Bush (Ky.) 368. Washburn lays down the rule that a fee may be limited so as to restrain the conveyance for a certain time. The Pennsylvania case cited holds that, while a general or perpetual restraint of alienation is repugnant and void to a fee simple, nevertheless a partial restriction for a particular time or against conveying to a particular person is good. The same general doctrine is stated in the Indiana case cited, although the real estate there involved was a trust estate, and the direct question bere involved was not there decided. In Stewart v. Brady, 3 Bush (Ky.) 623, the land was devised subject to a limitation upon alienation until the devisee attained the age of 35 years, and it was held a valid restriction against her voluntary disposition of the

property, but insufficient to prevent the land being sold for the payment of her debts. On the other hand, Jones on Real Property, § 662, points out that a condition attached to an absolute fee that the grantee shall not alienate within a limited time has been held void in Murray v. Green, 64 Cal. 263, 28 Pac. 118, Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61, and McCleary v. Ellis, 54 Iowa, 311, 6 N. W. 571, 37 Am. Rep. 205. In Overman's Appeal, 88 Pa. 276, the Supreme Court of Pennsylvania, speaking to this subject, said: "It contravenes that general policy which forbids restraints on alienation and the nonpayment of honest debts. * Property tied up for half a century contributes nothing to the general wealth, while it is a great stretch of liberality to the ownership of it to suffer it to remain in this anomalous state for so many years after its owner has left it behind him. Clearly, it is against public interest that the property of a future generation shall be controlled by a deed of a former period, or that nonpayment of debts should be encouraged." It is the policy of the law in this state to permit the creation of spendthrift trusts, and to allow the owner of property to apply a portion or the whole thereof to the maintenance and support of those he wishes to provide for, and who are not able to control and manage their own affairs. So long as such a conveyance does not offend against the law of perpetuity, and so long as the conveyance is a proper trust, the courts will observe the wishes of the donor. So, too, it is competent for the owner to convey or devise property in trust for the benefit of those the donor wishes to befriend, and such trusts may continue for a limited period, or even during the life of the beneficiary. In all such cases, however, the beneficiary has only an equitablé interest, and not the fee in the land. Such rules, however, do not apply where the conveyance is absolute to the donee, coupled with either a perpetual or limited power of alienation, or attempts to place the property beyond the reach of the creditors of the donee. The better rule and the better reason is that such limitations or conditions cannot be grafted upon a fee simple estate, because they are repugnant to the absolute ownership incident to the fee. Donors who have such limited confidence in their donees, should create spendthrift trusts, and not, as here, attempt to evade and violate fundamental and wise provisions of law in reference to mere legal estates. It follows that the conditions against alienation or liability for debts in the deed here involved are void, because they are repugnant to the absolute ownership granted by the deed to the grantee.

2. Defendants next contend that the trial court erred in excluding the certified copy of the judgment. The gist of this contention is that the certified copy showed that the judgment was not a final judgment, because

the motions for new trial and in arrest had not been acted upon at the time the execution was issued. The trial court properly exIcluded the evidence offered, for the reason that under the issues tendered by the defendants and conceded by the plaintiffs, the judgment under which the execution issued was alleged to be a final judgment. Such being the issues, it was incompetent for the defendants to contradict them.

The

3. Lastly, the defendants contend that the sheriff's deed is void, for the reason that it does not affirmatively appear therein that the defendant Hudspeth was afforded an opportunity to select the portion of the land which he would hold as his homestead. deed in question recites that commissioners were appointed, and that they set apart 50 acres as a homestead for the defendant. The deed does not affirmatively show that prior to the appointment of the commissioners the sheriff gave the defendant Hudspeth an opportunity to choose that portion of the land he would select as his homestead. It is also true that the defendants offered no evidence whatever tending to prove that the sheriff had failed in his duty in this regard. Section 3617, Rev. St. 1899, which was the law in force at the date of the levy and sale under the execution in this case, provides that when an execution is levied upon a homestead the homesteader shall have a right to designate and choose the part of the land to which the exemption shall apply, "and upon such designation and choice, or in case of a refusal to designate and choose, the sheriff levying the execution shall appoint three disinterested appraisers, who shall, first being sworn to the faithful discharge of their duties, fix the location and boundaries of such homestead, and the sheriff shall then proceed with the levy of such execution upon the residue of such real estate, as in other case; and such proceedings in respect to the homestead shall be stated in return upon such execution." This court has frequently held that, unless the sheriff gives the homesteader a fair opportunity to make his selection, the sale is void, and that until such opportunity is afforded and such homesteader refuses to make a selection the sheriff has no power to have a homestead set apart. Macke v. Byrd, 131 Mo. 682, 33 S. W. 448, 52 Am. St. Rep. 649; Brewing Association v. Howard, 150 Mo., loc. cit. 450, 51 S. W. 1046; Keene v. Wyatt, 160 Mo. 31, 60 S. W. 1037, 63 S. W. 116. Ordinarily, the law is that an officer is presumed, in the absence of a showing to the contrary, to have performed his duty. Under this general presumption, a sheriff, except for the provisions of the statute, would be presumed to have performed his duty and to have given the homesteader an opportunity to designate and choose the portion of the land he desired to retain as his homestead. But a homestead is purely a statutory creature, and the statute in this state has prescribed the steps which must

be taken before land, which is in whole or in part a homestead, can be lawfully subjected to seizure and sale. The section of the statute quoted requires the sheriff, first, to give the homesteader a fair opportunity to make a choice and selection, and only authorizes the sheriff to have the homestead set apart after the homesteader has refused to designate or choose. If the statute stopped here, the general presumption of law that an officer has performed his duty would obtain. But the statute expressly requires that, "Such proceedings in respect to the homestead shall be stated in return upon such execution." This statute destroys the general presumption of law aforesaid, and expressly requires that all of the preliminary steps provided to be taken before property in which a homestead right exists can be sold must be stated in the return upon the execution. But, whilst such are the provisions of the statute as to the return, there is no provision in the statutes that the sheriff's deed shall contain all of the recitals which the statute requires the return or execution to set out. The return of the sheriff on the execution in question here is not contained in the record, nor is there any evidence that it did not fully comply with the requirements of the statute. The defendants therefore have wholly failed to afford the foundation upon which the statute bases their right to make the objection to the validity of the sale here contended for. From such failure so to do it is fairly inferable that no such basis existed, and, as the statute does not require such recitals in the sheriff's deed, and only requires them to be stated in the return on the execution, this contention of the defendants must be resolved against them.

4. It is said by defendants that the trial court erred in treating this case as a case in equity. The answer of the defendants set up an equitable defense, but asked no affirmative equitable relief. The case therefore is a case at law, and not one in equity. Martin v. Turnbaugh, 153 Mo. 172, 54 S. W. 574. The defendants, however, failed to preserve any exception to this action of the court, but, on the contrary, acquiesced therein, and tried the case as if it was one properly cognizable in equity. They are therefore not in position now to assign this as an error. In view, however, of what is hereinbefore Isaid, it is immaterial whether the case be treated as one in equity or one at law, for in either event the result would be the same.

The 70 acres of land in dispute were sold by the sheriff for the insignificant sum of $50, and it would appear a great hardship to the defendant to lose the land for such a price, and therefore this court has sought with great care to find some ground upon which to set aside the sale, to the end that the land may be made to realize its full value; but, after a careful and painstaking examination of the case, the court is unable

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1. FRAUDULENT CONVEYANCES HOMESTEAD EXEMPTIONS.

As, under Rev. St. 1899, § 3616, a homestead is exempt from attachment and execution, a conveyance thereof by a husband to his wife is not fraudulent as against his creditors.

[Ed. Note.-For cases in point, see vol. 24, Cent. Dig. Fraudulent Conveyances, §§ 118123.]

2 HOMESTEAD-MORTGAGED PROPERTY.

Where the land is subject to a mortgage, the homesteader is entitled to a homestead to the amount of the exemption in what remains of the total value of the land after the mort. gage is deducted.

3. SAME SELECTION.

Under Rev. St. 1899, § 3617, conferring on a homesteader the right to designate and choose the part of the land which shall be exempt from execution under section 3616, a wife is entitled to select the particular part of land conveyed to her by her husband, to the value of the amount of exemption which she will retain as a homestead.

4. SAME-ILLEGAL SALE ON EXECUTION.

Under the further provision of said section 3617 making it the duty of the sheriff, on such designation or choice being made, or on refusal to make the same, to appoint three disinterested appraisers to value and set apart the homestead, and then to levy the execution on the residue of the real estate, where these prerequisites of the statute have not been observed any sale by a sheriff is void.

5. SAME.

The fact that a proceeding to set aside a Conveyance by a husband to his wife of land as in fraud of creditors is one in equity does not change such homestead rights, and authorize a court of chancery to order the whole land sold, and the homestead exemption to be turned over to the homesteader in cash, instead of land, as even courts of equity are bound by the homestead laws of the state, and cannot order the homestead interest paid to the homesteader in cash, instead of allowing him to designate the particular piece of the land he will hold as such homestead.

6. SAME-SETTING APART.

Where a house is located on one of the 40's of land consisting of 160 acres, 120 acres of which, including the house site, is covered by a mortgage, it is possible for the homesteader to designate and choose lands of the value of the exemption, exclusive of the mortgage, out of the whole tract, and for commissioners appointed to value and set apart to him such a homestead in kind.

7. SAME-VALUATION.

Whether land subject to a mortgage exceeds in value the $1,500 homestead exemption, over and above the mortgage, can only be ascertained by commissioners appointed to value the land, as the statutes do not confer power on the court-even on a court of equity-to determine the question.

8. SAME.

In a proceeding in equity to set aside a conveyance of land by a husband to his wife

as in fraud of creditors, the power of the court is limited to a finding that the money which purchased the land belonged to the husband, except a portion thereof belonging to the wife; and, on such finding, where the land is occupied as a homestead, the court is limited in its decree to directing the sheriff to give the homesteader the right to select the particular land he desires to hold as a homestead, and to appoint commissioners to value and set apart the same to him, and thereafter to direct the sale of any land in excess of area or value of the exemption, and the payment from the proceeds of the amount due the wife, and the application of the balance to plaintiff's judgment. 9. HUSBAND AND WIFE WIFE'S PROPERTY.

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POSSESSION

OF

In such action, evidence examined, and held insufficient to show a reduction by the husband to his possession of the wife's money invested by him in the land, so as to entitle him to such money under the rules of the common law.

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Bill by Reed Bros. against R. D. O. Nicholson and wife. Decree for plaintiffs, and defendants appeal. Reversed.

Henry Brumback and Gibbs & Henson, for appellants. Jos. M. McPherson and Wm. B. Skinner, for respondents.

MARSHALL, J. This is a bill in equity to set aside a deed made by the defendant R. D. O. Nicholson to his wife, Nancy E. Nicholson, on the 27th of March, 1896, conveying to her the southwest quarter of the southeast quarter of section 26, township 29, range 25, and the west half of the northeast quarter and the southeast quarter of the northwest quarter of section 35, same township and range, in Lawrence county, Mo., on the ground that it was made to defraud the creditors of the husband-the plaintiffs among the number. The circuit court entered a decree in favor of the plaintiffs, and the defendants appealed.

The case made is this: On the 16th of October, 1895, the husband executed his note for $360 to one J. A. Fretwell or bearer, payable at six months; the consideration being the right granted to him to sell in Greene county, Mo., a certain patented bed brace. The note was not paid, but before maturity had passed into the hands of the plaintiffs herein, who on the 7th of July, 1896, instituted suit against the husband thereon, which resulted in a judgment in favor of the plaintiffs on the 28th of August, 1896, for $381.60. In the meantime the husband had made this deed, here sought to be set aside, to his wife, and after the return of the execution nulla bona the plaintiffs instituted this suit to set the same aside on the ground that it was fraudulent as to the husband's creditors. Upon the trial of this case the plaintiffs introduced the deed in question, and the records and files in the case of the plaintiffs against the husband on the note aforesaid, together with the execution and the return thereon. The plaintiffs then called the de