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fendant Nicholson, the busband, and had him should have her money or the land at any identify a statement sworn to by him before time she saw fit. The consideration expressappraisers who had been selected by the ed in the deed from the husband to the wife, sheriff to appraise and set apart to him such here sought to be set aside, was $4,500. The property as was exempt under the law, in defendant husband testified that he figured which he stated that he had no property at up the amount of money which belonged to all. Thereupon the plaintiffs rested. The his wife, and which had gone into the purdefendants then called R. D. 0. Nicholson, chase of the land, added 8 per cent. interest the husband, who testified that he married thereto, and that it aggregated $4,800, and the defendant Nancy on the 29th of July, that, in order to make that sum good to her, 1866; that when they were married his wife's he conveyed the land to her, at a valuation father deeded 80 acres of land in Greene of $4,500, and turned over to her personal county to her (on cross-examination he stat- property, consisting of cattle, mules, etc., to ed that the deed was made to himself and the value of $300. He testified that the land his wife jointly), and that her father also is worth $17 to $18 an acre, and it was shown gave her a mare, 10 hogs, 8 head of sheep, that there is a valid deed of trust on the a cow, and a calf; that they afterwards sold land for $1,400. The defendants called two the 80 acres of land in Greene county for other witnesses, one of whom said the land $800, and, her father having died, she receiv- land was worth $17.50 an acre, aggregating ed from his estate $450, and later personal $2,800, and the other said it was worth $20 property to the value of $200; that she sold an acre, aggregating $3,200. In rebuttal the some of the personal property for $40; that plaintiffs called four witnesses, three of with the proceeds of such sale, to wit, $800 whom said the land was worth $25 an acre, for the land, $450 received from her father's aggregating $4,000, and one of them said it estate, the $200 worth of personal property, was worth $30 an acre, aggregating $4,800. the sale of the mare for $130, and $500 real- It was further shown that the land lies a ized from the sale of a wagon and team of quarter of a mile south of the road on the mules, together with what had been earned north, and a mile north of the road on the on the farm, they purchased 120 acres in south. Lawrence county and 80 acres in Greene The trial court found that the conveyance county for $2,500 or $2,600, paying thereon from the husband to the wife was fraudu$2,000; that there was a vendor's lien on the lent, and set the same aside. The court furland for $500 or $600, which was afterwards ther found that the defendant husband is endiscovered, in consequence of which the pur- titled to a homestead in the premises to the chase was rescinded, and they received back value of $1,500, and that the wife is entitled nearly all the money they had paid therefor; to the sum of $450, which she received as a that afterwards, in 1874, they purchased 120 gift from her mother in 1895, and which had acres, being the west half of the northeast never been reduced to possession by the husquarter of section 35 and the southwest quar- band with the written consent of the wife, ter of the northwest quarter of section 35, in and further found that there was a valid Lawrence county (a part of the land here in deed of trust on the 120 acres which lie in controversy), and paid therefor $2,600; that section 35 for $1,400, with interest at 6 per they afterwards purchased 40 acres addi- cent. thereon. The court thereupon ordered tional from the railroad (being the northwest that the land be sold, subject to said deed of quarter of the southeast quarter of section trust, and that out of the proceeds there be 26); that he took the deeds to the land in his first paid to the wife the sum of $450, and own name; that his wife had always kept then to the husband $1,500, as his homestead the money, keeping it sometimes in her bo- interest in the premises, and out of the balsom, and at other times in other places, but ance, if any, there be paid the costs and the that he generally conducted the trades; that plaintiffs' judgment. The court further orat the time of his marriage he had no prop- dered that unless the premises should bring erty at all, except a horse, a saddle, and a the sum of $1,500—the homestead interest of bridle, and had acquired none thereafter, ex- the husband, subject to the deed of trust as cept such as was made from farming the aforesaid—then the premises, or any part land. Immediately upon acquiring the land, thereof, should not be sold. in 1874 (being the land in question here), he After proper steps, the defendants apand his wife moved onto the same, occupied pealed. it, and used it as a homestead, and have con- 1. It is a conceded fact, which was also tinued so to do ever since. The house is lo- found to be a fact by the trial court, that the cated on the northwest quarter of the north- land in controversy constituted the homestead east quarter of section 35. The total land of the defendants. The total tract does not exconsists of 160 acres. The husband testified ceed 160 acres. There was a conflict in the that he had never reduced the wife's money evidence as to the value of the land. The or property to his possession, but that when defendant husband and his witnesses valued it was invested in the land the title was it at less than $2,900. There is a valid mort. taken in his name, and the understanding gage covering 120 of the 160 acres, and embetween him and his wife was that she bracing the part on which the house stands, for $1,100. The husband, as the head of the they say that the order of sale was proper, family, was entitled to a homestead in the because it was impossible to set out the Equity of redemption of the land; that is, he homestead in kind. In this, however, counmis entitled under section 3616, Rev. St., sel are manifestly in error, for the land con1899, to a bomestead not to exceed 160 acres sists of 160 acres. The house is located on in area, or to exceed a total value of $1,500. one of the 40's. It is therefore not only posTie salue must be taken out of the excess sible, but absolutely certain, that the homeover the mortgage; that is, the amount of the steader could designate and choose lands of mrtgage must be first deducted from the the value of $1,500, exclusive of the morttotal value of the land, and the homesteader gage, out of the 160-acre tract, and it is allowed a homestead to the value of not ex- equally clear that the commissioners could ellng $1,500 in what remains of the total set apart to the homesteader such a homevalde after the mortgage is deducted. Such stead in kind. The trial court therefore was borestead is exempt from attachment and in error in ordering the land sold. Even elecction, under the section of the statute courts of equity are bound by the homestead quoted. Upon the theory, then, that the land laws of this state, and cannot order the was the land of the husband, and that the homestead interest paid to the homesteader vfe had no interest in it, the conveyance to in cash, instead of allowing him to designate the wife cannot be regarded as fraudulent the particular piece of the land he will boļd blax, for, not being subject to attachment as such homestead. The judgment of the or execution, it was beyond the reach of the lower court must therefore be reversed for creditors of the husband. Any conveyance this reason. thereof could in no sense hinder, delay, or 2. The defendants contend that the land defraud the creditors. Bank of Versailles v. in question rightfully belonged to the wife, Gattrey. 127 Mo. 195, 29 S. W. 1004, 48 Am. because her money bought the same, and St Rep. 621; Rose v. Smith, 167 Mo., loc. cit. that the conveyance of the husband to the 80. 66 S. W. 940; Balz v. Nelson, 171 Mo., wife was simply placing the title where it de eit. 600, 72 S. W. 527. The only matter, should have been put in the first place. The then, of importance upon the issues joined plaintiffs contend that when the land that II der this view of the case, is whether the was given to the wife by her father was and was worth more than $1,500 in excess converted into cash, and when the property of the mortgage on the same. There was a she received from her father's estate was encfict in the testimony as to value. The converted into cash, and when such cash trial court ordered the land to be sold, and was reduced to possession by the husband, $12* in money to be turned over to the prior to the enactment of the married wobestand in lieu of the homestead. That de- man's act of 1875, the cash became the propense was erroneous, for two reasons: First. erty of the husband, by virtue of his marital Because the husband had conveyed his home- relations, and therefore the property purstead interest to his wife, and she was enti- chased with such cash was the property of tel thereto, and to the proceeds of any sale the husband, and was subject to his debts. thereof. The deed of the husband to the As to the $450 received by the wife as a gift wife, of a homestead, is valid even as against from her mother after the passage of the the husband's creditors. Second. The wife married woman's act, and not reduced to sas entitled to select the particular part of the possession of the husband by the written the land, of the value of $1,500, which she consent of the wife, but by the husband inwould retain as a homestead. Section 3617, vested in the land and the improvement Rer, St. 1899, confers the right upon the thereof, the plaintiffs concede that the wife bonesteader to designate and choose the is entitled thereto. These considerations, part of the land which shall be exempt from however, under the issues joined, become execution under section 3616; and the statute important only in the event that it should be Dates it the duty of the sheriff, upon such ascertained that the land exceeded $1,500 in designation or choice being made, or upon a value, over and above the mortgage. This refusal to make the same, to appoint three fact could only be ascertained by commisdsbterested appraisers to value and set sioners appointed to value the land, and to apart the homestead, and then to levy the set apart the specific land selected by the execution upon the residue of the real estate, homesteader as a homestead. The statutes and this court has announced the rule that do not confer power upon a court-even a iny sale by a sheriff where these prerequi- court of equity—to determine that question. ctns of the statute have not been observed In such a case as this the power of a court is poid. The fact that this is a proceeding of equity is limited to a finding that the 'muity does not change the rights of the money which purchased the land was the kotesteader, as above defined, in any re- money of the husband, and not of the wife; gect, and does not authorize a court of and upon such a finding, where the land is chancery to order the whole land sold, and occupied as a homestead, the court is limited the homestead exemption to be turned over in its decree to directing the sheriff to give to the bomesteader in cash, instead of land. the homesteader the right to select the parCounsel for plaintiffs realize this rule, for ticular land he desires to hold as a home

BAKER v. CITY OF ST. LOUIS et al. (Supreme Court of Missouri, Division No. 1.

June 15, 1905.) APPEAL-FINAL JUDGMENTS.

Defendant R. answered by a general deniai, and the other defendants entered a demurrer, on which judgment was entered in their favor. Plaintiff then dismissed as to R., and the other defendants objected, and moved to set aside the dismissal. Held that, while this motion was pending, the judgment as entered was not final as to all the parties, and an appeal therefrom by plaintiff was preinature.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Minnie A. Baker against the city of St. Louis and others. From a judg. ment on a demurrer entered by part of defendants, plaintiff appeals. Appeal dismissed.

Jamison & Thomas, for appellant. Chas. W. Bates and Wm. F. Woerner, for respondents.

stead, and to appoint coinmissioners to value and set apart the same to bim, and thereafter, if there is any land in excess of area or value of the statutory homestead exemption, to direct the sheriff to sell the same, and in that event out of the proceeds to pay the wife the $430, which was her separate property, and to apply the balance to the payment of the plaintiffs' judgment against the husband. Upon the question whether the money with which this land was purchased was the money of the husband or of the wife, there is no conflict whatever in the evidence. The uncontradicted evidence is that the husband had no means whatever, except a horse, a saddle, and a bridle. All the other money which was employed to purchase the land was money which the wife recieved from her father and her mother as gifts, or was derived as an inheritance from her father's estate. All of it except $450 was so received and derived prior to the passage of the married woman's act of 1875. At common law the husband was entitled to the choses in action of the wife, but it was necessary for him to reduce them to his possession. Whether he had so reduced them to possession was always a question of law under the particular facts of each case. In this case the testimony is uncontradicted that when the land that was given to the wife by her father was sold, and when the personal property she received from her father's estate was sold, the money was turned over to the wife, and she retained the possession thereof until it was invested in other lands, and when the trade for such other lands was rescinded, and the money refunded to her, she retained the possession thereof until it was invested in the land in controversy. The evidence in this case is not sufficient to show a reduction by the husband to his possession of the wife's money, so as to entitle him to the same under the rules of the common law. If, therefore, upon a trial a new of this case, the facts should appear as they now appear herein, the trial court should dismiss the bill. If, however, the facts appear otherwise than as they now appear, and if it should be shown by competent evidence that the husband had reduced the money of the wife to his possession prior to the passage of the married woman's act of 1875, and had invested it in a homestead, then the course above indicated as to setting aside the homestead in favor of the wife, by virtue of the conveyance of the homestead by the husband to the wife, and the sale only of the land that exceeded in area and value the statutory exemption for the wife, should be ordered, and the proceeds thereof distributed between the wife and the plaintiffs as above indicated.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded, to be proceeded with in accordance herewith. All concur.

The pe

BRACE, P. J. This is an action by Minnie A. Baker, plaintiff, against the city of St. Louis and the following officials of said city, viz.: Amand Ravold, bacteriologist; William C. Tiechman, city chemist; Max C. Starkloff, health commissioner; and Rolla C. Wells, Max C. Starkloff, Joseph L. Hornsby, Andrew F. Blong, Albert N. Merrill, and Henry N. Chapman, members of the board of health of said city-defendants. tition is in five counts. The first and second each ask $5,000 damages for the death of two of plaintiff's minor children, and the other three counts each ask $2,000 damages on account of sickness of three of plaintiff's children, all caused, it is alleged, by the negligence of defendants in furnishing plaintiff with improperly prepared and noxious diphtheria antitoxin. The answer of defendant Ravold to the petition was a general denial. The other defendants demurred thereto, their demurrer was sustained, and judg. ment thereon rendered in their favor. Thereupon plaintiff dismissed as to Ravold, and the defendants other than Ravold filed the following motion: “Now come all the defendants in the above-entitled cause (except Amand Ravold), and particularly the city of St. Louis, and object to and except to the action of the court in permitting the plaintiff to dismiss the cause as to Amand Ravold, and move the court to set aside said dismissal, for the following reason, to wit: It appears from plaintiff's petition that the alleged cause of action sued for arises from the wrongful and unauthorized acts and carelessness and negligence of said Ravold, if there be any liability at all on the part of any of the defendants, and that by reason thereof only is the city of St. Louis made a party to the cause. It further appears that said Ravold was duly subject to service in this state, and actually had been served by

the plaintiff, and is a codefendant contem- BRACE, P. J. This is an appeal from a patci by Session Acts of Missouri for 1901, decree in partition. The cause coming on .is, 79, and that the defendant city of St. to be heard in the court below was referred iciis has a right, and hereby insists, on said to Hon. E. W. Major, who, was "directed to Biroid being retained as a defendant in hear and decide the whole issue, and to rethis case so long as it, the said city of St. port his findings of fact and conclusions of Louis, remains party thereto; and plaintiff, law" to the court; in pursuance of which orbaring voluntarily brought said Ravold into der the referee, having heard the evidence, the cause as a party thereto, will not now be made a voluminous report, setting out at peraiitted to dismiss as to him, and thereby great length his finding of facts and conclucompel this defendant to go through the sions of law upon every conceivable issue in peless formality of again making him a

the case. The following excerpts therefrom party thereto, as provided in said act above furnish a sufficient statement for the purposes referred to." And thereafter on the same of this decision: day, without any disposition having been "Upon the evidence adduced I find the made of this motion, the plaintiff perfected facts and my conclusions of law to be as folber appeal.

lows: That Dr. James D. Harris died inAs this motion is still pending in the cir- testate in the town of Wentzville, St. Charles eiit court, there has been no final disposi- county, Missouri, on January 6, 1886. That top of the case as to the defendant Amand he left surviving him as his heirs at law Ratold, and as there can be but one final Sarah W. Harris, his widow, plaintiff in this fudgment in a civil action, which must dis- case, she having since the death of Dr. HarDose of all the parties to the cause, the ap- ris married Thomas May, of Louisiana, Pike peal was prematurely taken, and must be county, Missouri; Claudia Harris, his daughdismissed. Rock Island Imp. Co. v. Marr, ter, who afterwards married Robert A. May, 198 Mo. 232, 67 S. W. 586; Seay v. Sanders, both of whom are defendants herein; and 88 No. App. 478.

Warren Harris, his son. That Sarah W. For this reason the motion of respondents Harris, now Sarah W. May, is the mother of to dismiss the appeal will be sustained, and Claudia Harris, now Claudia W. May, and the appeal dismissed. All concur.

Warren Harris. That at the time of the death of James D. Harris, his widow, Sarah W. Harris, was twenty-nine years of age,

and his two children, Claudia Harris and MAY V. MAY et al.

Warren Harris, were both minors.

That Warren Harris died intestate, and while (Supreme Court of Missouri, Division No. 1.

yet a minor, at the town of Wentzville, St. May 24, 1905.)

Charles county, Missouri, in the early part 1 GUARDIAN AND WARD-FINAL SETTLEMENT. of the year 1893, leaving as his only heirs

The final settlement of a guardian stands at law his mother, Sarah W. May, and his apon the same footing as a judgment, and is coaclusive as to all proper subjects of account

sister, Claudia W. May, each of whom I find included and involved.

and conclude inherited one-half of his es(Ed. Note.-For cases in point, see vol. 25,

tate. That James D. Harris at the time of Cet Dig. Guardian and Ward, g 542.]

his death was the owner of and possessed 2. SAVE-EXHIBIT OF ACCOUNT-NOTICE. in fee-simple title of a farm of 84.72 acres,

Under Rev. St. 1889, $ 5329, providing that being part of the west half of section 13, a guardian, on final accounting, shall make a just and true exhibit of the account between

township 47, range 1 east, in St. Charles himself and his ward, and file the same in court,

county, Missouri. Also lot No. 1 in block and cause a copy of the exhibit, together with a No. 20 in the Railroad Addition to the town written notice stating the day on which and the

of Wentzville, St. Charles county, Missouri; court in which settlement will be made, to be delivered to the ward, etc., a settlement made

and that the same was the residence and ben do exhibit was filed or notice given is not dwelling house of said James D. Harris at condusive as a final settlement, but has no the time of his death.

Also the greater force than an annual settlement, being northeast corner lot 1, block 3, in the original Dere prima facie evidence of the facts contained therein.

town of Wentzville, said piece of ground hav2. PARTITION-MONEY JUDGMENT.

ing a front of 22 feet and running back 66 In an action by a ward against her guard- feet. Also the southeast corner of said lot ian for the partition of certain land, which the

and block in said town, being 22 feet wide guardian purchased with the ward's money, it was improper to make a further sum, owing by

and running back 54 feet, in Wentzville, St. tbe guardian to the ward, a lien upon other

Charles county, Missouri, and known as the land held by the guardian as a homestead. 'drug store building.' That at the time of

the death of Dr. James D. Harris the reaAppeal from Louisiana Court of Common Pleas; D. E. Eby, Judge.

sonable cash market value of the farm afore

said was $1,500, and the reasonable cash Soit by Claudia May and others against

market value at the time of his residence was Sarab W. May. From a judgment for plaintifs, defendant appeals. Reversed.

$1,500, and the reasonable cash market value

at the time of the real estate in lot 1 of Pearson & Pearson, for appellant. Ball & block 3 of said town, and known as the Sparrow and Robert A. May, for respondents. 'drug store building,' was $600. That Sarah

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W. Harris administered on her said husband's" estate, and made final settlement thereof on the 9th day of May, 1893, in the probate court of St. Charles county, Missouri, and that on said final settlement the estate owed her the sum of $4.12. That Sarah W. Harris, plaintiff in this cause, made no election as to what interest she would take in the real estate of her husband, James D. Harris, and that, as a homestead interest exceeds in value a dower in the third part of her husband's lands which she might hold and enjoy during her natural life, I find that her homestead exceeds in value her dower interest in said real estate, and therefore find and conclude as a matter of law that she did then and does now take a homestead interest, the same being the larger interest, and which homestead at the time'was and is all of lot No. 1 in block 20 of the town of Wentzville in the county of St. Charles and state of Missouri, and which is part of the land sought to be partitioned by her in this

And I further find and conclude that, as she took a homestead interest under the law she had no dower or other interest in any of the other lands. I further find and conclude as a matter of law that Claudia W. Harris, now Claudia W. May, inherited onehalf of her father's real estate, except the homestead, one-half of which she inherited subject to her mother's homestead interest. I further find and conclude as a matter of law that Warren Harris inherited one-half of his father's real estate, except the homestead, one-half of which he inherited subject to his mother's homestead interest. I further find that on the 8th day of February, 1886, Sarah W. Harris, now Sarah W. May, was by the probate court of St. Charles county, Missouri, appointed guardian and curator of Claudia W. Harris and Warren Harris, her minor children.

I further find that both sureties on both bonds are now insolvent, and that plaintiff, outside of her interest in the property herein sought to be partitioned, has but a small estate, not to exceed $500 or $600, perhaps. I further find that James D. Harris at the time of his death carried an insurance policy on his life in the Ancient Order of United Workmen for $2,000, payable to Sarah W. Harris, his wife, Claudia W. Harris, his daughter, and Warren Harris, his son, in equal parts. I further find that Sarah W. Harris, as guardian and curator of Claudia W. Harris and Warren Harris, collected for each of said wards their proportional part of said insurance in said company, to wit, $666.67, each. I further find that as guardian and curator of her said minor children, Sarah W. Harris, for the purpose of reinvestment, sold by order of the probate court the east one-third of lot 1, block 3, in said town of Wentzville, St. Charles county, Missouri, having a front of 22 feet by 120 feet, and being the drug store property, for the sum of $600, which she received in full, and that the entire proceeds was the

property of her said wards. That the said probate court of said county approved said sale on the 13th day of November, 1888. I find that Sarah W. Harris, as guardian and curator of Warren Harris, made final settlement in his estate on May 9, 1893, which was a short time after his death, he having died in March, 1893. I further find that in said settlement she only accounted for and charged herself with $666.67, the one-third interest in said life insurance, and $200 as his interest in the proceeds of said drug store, which was sold for $600. I find she credited herself with the sum of $7.35 costs and $600 for six years' board, clothing, tuition, and maintenance, showing a balance due his said estate of $259.32, one-half of which she took as her part of her son's estate and onehall thereof, to wit, $129.66, she received as guardian and curator of her daughter, Claudia W. Harris. I find that she, the said Sarah W. Harris, kept one-third of the proceeds of the sale of said drug store as her own, whereas I find and conclude as a matter of law that she was not entitled to any part thereof, and had no legal interest therein. I further find that the entire amount of money she received from the insurance for the said Warren llarris and Claudia W. Harris was by her loaned to Charles J. Walker on March 1, 1887, at the rate of 742 per cent., and that he paid her the annual interest thereon and kept same continuously until August 26, 1892, and that during all of said time the $666.67 of Warren Harris and the $666.67 of Claudia W. Harris was by said curator loaned as stated at the rate of 712 per cent., and that all of said interest was collected by said curator, and that she failed to account to Warren Harris and his estate for said interest, and failed to account to Claudia W. Harris for said interest. I further find and conclude that on May 9, 1893, and being the time that Sarah W. Harris made final settlement of Warren Ilarris' estate she should have char. ged herself with the following items: To one-third life insurance.

$ 666 67 To interest thereon for five years, 5 months, 25 days at 75 per cent....

274 30 To one-half proceeds sale of drug store... 300 00 To interest thereon for 4 years, 5 months, 26 days at 6 per cent..

80 80 Total

$1,321 77 "I further find that she took credits as follows: By probate costs....

$ 7 35 By six years board, clothing, tuition, and maintenance

600 00 Total

$ 607 35 “Balance in curator's hands is $714.42, being the difference between $1,321.77 and $607.35. One-half of this amount I find and conclude belonged to Sarah W. Harris, and one-half thereof, to wit, $357.21, belonged to Claudia W. Harris.

“I find that Sarah W. Harris made final settlement of the James D. Harris estate on May 9, 1893, and made final settlement of Warren Harris estate May 9, 1893, and

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