fendant Nicholson, the husband, and had him identify a statement sworn to by him before appraisers who had been selected by the sheriff to appraise and set apart to him such property as was exempt under the law, in which he stated that he had no property at all. Thereupon the plaintiffs rested. The defendants then called R. D. O. Nicholson, the husband, who testified that he married the defendant Nancy on the 29th of July, 1866; that when they were married his wife's father deeded 80 acres of land in Greene county to her (on cross-examination he stated that the deed was made to himself and his wife jointly), and that her father also gave her a mare, 10 hogs, 8 head of sheep, a cow, and a calf; that they afterwards sold the 80 acres of land in Greene county for $800, and, her father having died, she received from his estate $450, and later personal property to the value of $200; that she sold some of the personal property for $40; that with the proceeds of such sale, to wit, $800 for the land, $450 received from her father's estate, the $200 worth of personal property, the sale of the mare for $130, and $500 realized from the sale of a wagon and team of mules, together with what had been earned on the farm, they purchased 120 acres in Lawrence county and 80 acres in Greene county for $2,500 or $2,600, paying thereon $2,000; that there was a vendor's lien on the land for $500 or $600, which was afterwards discovered, in consequence of which the purchase was rescinded, and they received back nearly all the money they had paid therefor; that afterwards, in 1874, they purchased 120 acres, being the west half of the northeast quarter of section 35 and the southwest quarter of the northwest quarter of section 35, in Lawrence county (a part of the land here in controversy), and paid therefor $2,600; that they afterwards purchased 40 acres additional from the railroad (being the northwest quarter of the southeast quarter of section 26); that he took the deeds to the land in his own name; that his wife had always kept the money, keeping it sometimes in her bosom, and at other times in other places, but that he generally conducted the trades; that at the time of his marriage he had no property at all, except a horse, a saddle, and a bridle, and had acquired none thereafter, except such as was made from farming the land. Immediately upon acquiring the land, in 1874 (being the land in question here), he and his wife moved onto the same, occupied it, and used it as a homestead, and have continued so to do ever since. The house is located on the northwest quarter of the northeast quarter of section 35. The total land consists of 160 acres. The husband testified that he had never reduced the wife's money or property to his possession, but that when it was invested in the land the title was taken in his name, and the understanding between him and his wife was that she should have her money or the land at any time she saw fit. The consideration expressed in the deed from the husband to the wife, here sought to be set aside, was $4,500. The defendant husband testified that he figured up the amount of money which belonged to his wife, and which had gone into the purchase of the land, added 8 per cent. interest thereto, and that it aggregated $4,800, and that, in order to make that sum good to her, he conveyed the land to her, at a valuation of $4,500, and turned over to her personal property, consisting of cattle, mules, etc., to the value of $300. He testified that the land is worth $17 to $18 an acre, and it was shown that there is a valid deed of trust on the land for $1,400. The defendants called two other witnesses, one of whom said the land land was worth $17.50 an acre, aggregating $2,800, and the other said it was worth $20 an acre, aggregating $3,200. In rebuttal the plaintiffs called four witnesses, three of whom said the land was worth $25 an acre, aggregating $4,000, and one of them said it was worth $30 an acre, aggregating $4.800. It was further shown that the land lies a quarter of a mile south of the road on the north, and a mile north of the road on the south. The trial court found that the conveyance from the husband to the wife was fraudulent, and set the same aside. The court further found that the defendant husband is entitled to a homestead in the premises to the value of $1,500, and that the wife is entitled to the sum of $450, which she received as a gift from her mother in 1895, and which had never been reduced to possession by the husband with the written consent of the wife, and further found that there was a valid deed of trust on the 120 acres which lie in section 35 for $1,400, with interest at 6 per cent. thereon. The court thereupon ordered that the land be sold, subject to said deed of trust, and that out of the proceeds there be first paid to the wife the sum of $450, and then to the husband $1,500, as his homestead interest in the premises, and out of the balance, if any, there be paid the costs and the plaintiffs' judgment. The court further ordered that unless the premises should bring the sum of $1,500-the homestead interest of the husband, subject to the deed of trust as aforesaid then the premises, or any part thereof, should not be sold. After proper steps, the defendants appealed. 1. It is a conceded fact, which was also found to be a fact by the trial court, that the land in controversy constituted the homestead of the defendants. The total tract does not exceed 160 acres. There was a conflict in the evidence as to the value of the land. The defendant husband and his witnesses valued it at less than $2,900. There is a valid mortgage covering 120 of the 160 acres, and embracing the part on which the house stands, for $1,400. The husband, as the head of the family, was entitled to a homestead in the equity of redemption of the land; that is, he was entitled under section 3616, Rev. St., 1899, to a homestead not to exceed 160 acres in area, or to exceed a total value of $1,500. The value must be taken out of the excess over the mortgage; that is, the amount of the mortgage must be first deducted from the total value of the land, and the homesteader allowed a homestead to the value of not exceeding $1,500 in what remains of the total value after the mortgage is deducted. Such bomestead is exempt from attachment and execution, under the section of the statute quoted. Upon the theory, then, that the land was the land of the husband, and that the wife had no interest in it, the conveyance to the wife cannot be regarded as fraudulent in law, for, not being subject to attachment or execution, it was beyond the reach of the creditors of the husband. Any conveyance thereof could in no sense hinder, delay, or defraud the creditors. Bank of Versailles v. Guttrey, 127 Mo. 195, 29 S. W. 1004, 48 Am. St. Rep. 621; Rose v. Smith, 167 Mo., loc. cit. 86, 66 S. W. 940; Balz v. Nelson, 171 Mo., joe. et. 690, 72 S. W. 527. The only matter, then, of importance upon the issues joined under this view of the case, is whether the and was worth more than $1,500 in excess of the mortgage on the same. There was a conflict in the testimony as to value. The trial court ordered the land to be sold, and $1.50) in money to be turned over to the busband in lieu of the homestead. That decree was erroneous, for two reasons: First. Because the husband had conveyed his homestead interest to his wife, and she was entitled thereto, and to the proceeds of any sale thereof. The deed of the husband to the wife, of a homestead, is valid even as against the husband's creditors. Second. The wife was entitled to select the particular part of the land, of the value of $1,500, which she would retain as a homestead. Section 3617, Rev. St. 1899, confers the right upon the bomesteader to designate and choose the part of the land which shall be exempt from execution under section 3616; and the statute makes it the duty of the sheriff, upon such designation or choice being made, or upon a refusal to make the same, to appoint three disinterested appraisers to value and set apart the homestead, and then to levy the execution upon the residue of the real estate, and this court has announced the rule that any sale by a sheriff where these prerequisites of the statute have not been observed is void. The fact that this is a proceeding in equity does not change the rights of the homesteader, as above defined, in any respect, and does not 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. Counsel for plaintiffs realize this rule, for they say that the order of sale was proper. because it was impossible to set out the homestead in kind. In this, however, counsel are manifestly in error, for the land consists of 160 acres. The house is located on one of the 40's. It is therefore not only possible, but absolutely certain, that the homesteader could designate and choose lands of the value of $1,500, exclusive of the mortgage, out of the 160-acre tract, and it is equally clear that the commissioners could set apart to the homesteader such a homestead in kind. The trial court therefore was in error in ordering the land sold. Even courts of equity are bound by the homestead laws of this 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. The judgment of the lower court must therefore be reversed for this reason. 2. The defendants contend that the land in question rightfully belonged to the wife, because her money bought the same, and that the conveyance of the husband to the wife was simply placing the title where it should have been put in the first place. The plaintiffs contend that when the land that was given to the wife by her father was converted into cash, and when the property she received from her father's estate was converted into cash, and when such cash was reduced to possession by the husband, prior to the enactment of the married woman's act of 1875, the cash became the property of the husband, by virtue of his marital relations, and therefore the property purchased with such cash was the property of the husband, and was subject to his debts. As to the $450 received by the wife as a gift from her mother after the passage of the married woman's act, and not reduced to the possession of the husband by the written consent of the wife, but by the husband invested in the land and the improvement thereof, the plaintiffs concede that the wife is entitled thereto. These considerations, however, under the issues joined, become important only in the event that it should be ascertained that the land exceeded $1,500 in value, over and above the mortgage. This fact could only be ascertained by commissioners appointed to value the land, and to set apart the specific land selected by the homesteader as a homestead. The statutes do not confer power upon a court-even a court of equity-to determine that question. In such a case as this the power of a court of equity is limited to a finding that the money which purchased the land was the money of the husband, and not of the wife; and upon such a 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 home stead, and to appoint commissioners to value and set apart the same to him, 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 $450, 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 anew 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. 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 denial, 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 premature. 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 judgment 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. 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. The petition 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 judgment 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 contempated by Session Acts of Missouri for 1901, . 78, 79, and that the defendant city of St. Louis has a right, and hereby insists, on said Kavoid being retained as a defendant in this case so long as it, the said city of St. Louis, remains party thereto; and plaintiff, having voluntarily brought said Ravold into the cause as a party thereto, will not now be permitted to dismiss as to him, and thereby compel this defendant to go through the Eseless formality of again making him a party thereto, as provided in said act above referred to." And thereafter on the same day, without any disposition having been made of this motion, the plaintiff perfected ber appeal. As this motion is still pending in the circuit court, there has been no final disposition of the case as to the defendant Amand Ravold, and as there can be but one final judgment in a civil action, which must dispose of all the parties to the cause, the appeal was prematurely taken, and must be dismissed. Rock Island Imp. Co. v. Marr, 168 Mo. 252, 67 S. W. 586; Seay v. Sanders, 88 Mo. App. 478. For this reason the motion of respondents to dismiss the appeal will be sustained, and the appeal dismissed. All concur. MAY v. MAY et al. (Supreme Court of Missouri, Division No. 1. May 24, 1905.) 1 GUARDIAN AND WARD-FINAL SETTLEMENT. The final settlement of a guardian stands upon the same footing as a judgment, and is conclusive as to all proper subjects of account included and involved. [Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Guardian and Ward, § 542.] 2. SAME-EXHIBIT OF ACCOUNT-NOTICE. Under Rev. St. 1889, § 5329, providing that a guardian, on final accounting, shall make a just and true exhibit of the account between himself and his ward, and file the same in court, and cause a copy of the exhibit, together with a written notice stating the day on which and the court in which settlement will be made, to be delivered to the ward, etc., a settlement made when no exhibit was filed or notice given is not conclusive as a final settlement, but has no greater force than an annual settlement, being mere prima facie evidence of the facts contained therein. 3. PARTITION-MONEY JUDGMENT. In an action by a ward against her guardian for the partition of certain land, which the guardian purchased with the ward's money, it was improper to make a further sum, owing by the guardian to the ward, a lien upon other land held by the guardian as a homestead. Appeal from Louisiana Court of Common Pleas; D. E. Eby, Judge. Suit by Claudia May and others against Sarah W. May. From a judgment for plaintiffs, defendant appeals. Reversed. Pearson & Pearson, for appellant. Ball & Sparrow and Robert A. May, for respondents. BRACE, P. J. This is an appeal from a decree in partition. The cause coming on to be heard in the court below was referred to Hon. E. W. Major, who, was "directed to hear and decide the whole issue, and to report his findings of fact and conclusions of law" to the court; in pursuance of which order the referee, having heard the evidence, made a voluminous report, setting out at great length his finding of facts and conclusions of law upon every conceivable issue in the case. The following excerpts therefrom furnish a sufficient statement for the purposes of this decision: * "Upon the evidence adduced I find the facts and my conclusions of law to be as follows: That Dr. James D. Harris died intestate in the town of Wentzville, St. Charles county, Missouri, on January 6, 1886. That he left surviving him as his heirs at law Sarah W. Harris, his widow, plaintiff in this case, she having since the death of Dr. Harris married Thomas May, of Louisiana, Pike county, Missouri; Claudia Harris, his daughter, who afterwards married Robert A. May, both of whom are defendants herein; and Warren Harris, his son. That Sarah W. Harris, now Sarah W. May, is the mother of Claudia Harris, now Claudia W. May, and Warren Harris. That at the time of the death of James D. Harris, his widow, Saralı W. Harris, was twenty-nine years of age, and his two children, Claudia Harris and Warren Harris, were both minors. That Warren Harris died intestate, and while yet a minor, at the town of Wentzville, St. Charles county, Missouri, in the early part of the year 1893, leaving as his only heirs at law his mother, Sarah W. May, and his sister, Claudia W. May, each of whom I find and conclude inherited one-half of his estate. That James D. Harris at the time of his death was the owner of and possessed in fee-simple title of a farm of 84.72 acres, being part of the west half of section 13, township 47, range 1 east, in St. Charles county, Missouri. Also lot No. 1 in block No. 20 in the Railroad Addition to the town of Wentzville, St. Charles county, Missouri; and that the same was the residence and dwelling house of said James D. Harris at the time of his death. * * * Also the northeast corner lot 1, block 3, in the original town of Wentzville, said piece of ground having a front of 22 feet and running back 66 feet. Also the southeast corner of said lot and block in said town, being 22 feet wide and running back 54 feet, in Wentzville, St. Charles county, Missouri, and known as the 'drug store building.' That at the time of the death of Dr. James D. Harris the reasonable cash market value of the farm aforesaid was $1,500, and the reasonable cash market value at the time of his residence was $1,500, and the reasonable cash market value at the time of the real estate in lot 1 of block 3 of said town, and known as the 'drug store building,' was $600. That Sarah 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 cause. 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 one-half 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 Harris and Claudia W. Harris was by her loaned to Charles J. Walker on March 1, 1887, at the rate of 72 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 71⁄2 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 Harris' estate she should have charged herself with the following items: To one-third life insurance.. To interest thereon for five years, 5 months, To one-half proceeds sale of drug store.. Total ..... $ 666 67 274 30 300 00 80 80 $1,321 77 |