Hutchinson v. Safety Gate Co. Yet, we cannot believe that this conduct of the court was due to any ill feeling toward counsel or litigants or that it materially affected the merits of the case. The record shows that the words were spontaneously spoken, without apparent just provocation, but through thoughtlessness, and could not therefore have been prompted by prejudice or ill will, or through any design to prejudice the mind of the jury against the appellants. While these observations may not have been justified, yet that fact alone would not justify this court in imputing any evil motive to the honorable judge who tried the case. Our own experience teaches us that judges are but human, and they, like other people, during the excitement of the trial, worry over the perplexing questions that are presented and on the spur of the moment may in an unguarded moment say things which they did not mean, especially as it appears in black and white, disconnected from its surroundings, and feel sorry for having said them before the echo of the voice is lulled into silence. Notwithstanding this unfortunate incident, we are clearly of the opinion that it was not such prejudicial error as should warrant this court in reversing the judgment. We are, therefore, of the opinion that the judgment should be affirmed; and it is so ordered. All concur. Balance v. Gordon. OLLIE BALANCE v. LIZZIE GORDON and PEARL GORDON, Appellants. Division One, December 24, 1912. 1. HOMESTEAD LAWS: Liberally Construed. The correct judicial attitude towards homestead laws is one of as great liberality in construction as their words and spirit permit. Courts should be quick to see and astute to aid the beneficent purposes of homestead statutes. They were not framed to aid creditors to collect debts. Their purpose was to preserve a home for the family against the vicissitudes of fortune. 2. HOMESTEAD: Interest of Children, etc. There is a wellmarked distinction between the quality of a mere exemption privilege in the householder and the homestead estate vesting in his widow and minor children. 3.-: Date of Record of Deed. Whether or not the time of filing the deed to the homestead is material in considering the title of the widow and minor children, will not be decided where the homestead was acquired before the note upon which judgment was rendered in the probate court, under which the property was sold to appellants by the administrator, was made there being no proof that the note was given for a pre-existing debt. 4. 5. : : : Presumption that Deed was Recorded. Where the answer admits that the householder acquired title to the land in 1893, the presumption is, in the absence of any evidence to the contrary, that the deed was presently put of record. :Antedating Debt: Burden of Proof: Sale Ordered by Probate Court. A creditor who through legal process has a homestead sold to pay his debt must carry the burden of showing the debt was older than the homestead. The allowance of the debt by the probate court, and its order to sell the property claimed as a homestead, do not amount to presumptive proof that the debt antedated the homestead. It will not be presumed, in aid of the creditor's effort to defeat the homestead, that the probate court would not have ordered the sale unless the debt antedated the homestead. 6. -: Sale Subject to Homestead: After 1895: Vested Interest in Remedy. Although the debt was made and the homestead established prior to 1895, and although under the Act of 1875 the homestead property could be sold to pay the householder's debts subject to the widow's and children's con 7. Balance v. Gordon. tinued right of homestead therein, the creditor had no such vested interest in that remedy as gave him any right to the property as a purchaser where the householder died and an attempt was made to sell the homestead property after the enactment of the Act of 1895, which does not permit a sale, subject to the widow's and minor children's right to homestead, to pay the householder's debts. The purchaser's inter ests were restricted by the homestead statutes existent when the householder died. ———: Vested Interests of Creditors and Widow. The rights of creditors in the homestead property, and the rights of the widow and minor children therein, must be measured by the law in existence at the death of the householder. The creditor has no vested interest in the property given by a particular statute no longer in force when the householder dies, though the debt was made and the homestead was acquired before that statute was repealed; and neither does the widow have any vested right in a homestead taken away by statute before the householder died. Appeal from Moniteau Circuit Court.-Hon. W. H. Martin, Judge. AFFIRMED. C. M. Gordon and S. C. Gill for appellants. Under the Homestead Law of 1875, Sec. 5439, R. S. 1889, the homestead of deceased could be sold to pay the debts of deceased, subject to the homestead. rights of his widow and minor children. Keene v. Wyatt, 160 Mo. 1; Robbins v. Boulware, 190 Mo. 33. The construction of the Homestead Law of 1875 was as much a part of the contract of indebtedness-the Taylor note in this case-as any other part of it. Broyles v. Cox, 153 Mo. 251; 36 Cyc. 1210 and 1211. Homestead exemption rights are effective only from date of filing for record the deed to such homestead. Sec. 5441, R. S. 1889; Acreback v. Myer, 165 Mo. 685. If the construction of the Homestead Law of 1875 was a part of Taylor's contract with Balance said note dated Oct. 27, 1894-then such homestead of deceased was subject to sale to pay said debt, whether Balance v. Gordon. debtor died prior to or after said amendment of 1895 to said Sec. 5439, R. S. 1889. If the debt of Taylor was contracted before the filing of the Balance deed for record, it was subject to be sold to pay said debt under any theory of this case; but if such deed were filed for record prior to date of debt expressed in said note dated Oct. 27, 1894, the creditor, Taylor, under the Homestead Law then in effect, had the right to rely on Balance paying same if he lived, and in case of his death to rely on the construction of said homestead law then in force, to have said homestead sold to pay said debt, subject to the homestead rights of said widow, Dolly Balance, and any minor children, and that subsequent legislation could not take away this right. John M. Williams for respondent. (1) The pleadings and evidence in this case admit and show that the property in controversy was the homestead of Gilbert Balance, purchased by him November 22, 1893, that he built a cabin on it immediately afterwards, and lived there until his death. The debt and the only debt probated against his estate was due Taylor and dated Oct. 27, 1894, nearly a year after the homestead was acquired by Balance. The debt due said Taylor as evidenced by said note, having occurred after the acquisition of the homestead, the homestead was not liable for its payment. Sec. 5439, R. S. 1889. There is no evidence showing that the debt was contracted before the note was given. (2) It devolved on the defendants to show all the facts necessary to authorize the probate court to authorize the sale, and these facts require the court to find that the debt from Balance to Taylor was prior to the deed and also prior to the filing of such deed for record. Anthony v. Rice, 110 Mo. 229; Rogers v. Marsh, 73 Mo. 64; Kelsay v. Frazier, 78 Mo. 112. Balance v. Gordon. LAMM, J.-Gilbert Balance, an ex-slave, died full of years and testate on the 1st of August, 1898, in the city of California, seized of lots 25 and 26 in Griner's Addition and leaving a widow, Dolly, and children-one of them, a minor daughter Ollie, the plaintiff. Gilbert, by his will duly probated, devised the lots to Dolly during her life and after her death to plaintiff. Defendants having taken possession of the lots in April, 1908, plaintiff presently sued to determine and adjudge title, averring in her petition facts sufficient to invoke old section 650 and (inter alia) that the lots were the homestead of Gilbert for many years before and at his death. By answer, defendants admit Gilbert died as alleged, leaving a will with the provisions alleged; averring that they, defendants, took and held possession; averring they claim as owners, and denying plaintiff has any interest; averring that Gilbert acquired title by deed on the 22d day of November, 1893; that thereafter in October, 1894, he executed a note for forty dollars "in settlement of a debt which he then owed the said Taylor and which he had owed for a long time;' that the note was not paid; that one Hardy was appointed and qualified as administrator of Gilbert's estate; that the Taylor note was allowed against the estate by the judgment of the probate court; that, other than the lots, there was no property to pay the note or costs of administration; that the lots were ordered sold by the probate court and were sold to pay the Taylor debt and said costs; that defendants as the highest and best bidders purchased at that sale for forty dollars and received an administrator's deed; that afterwards in 1902 they acquired the widow's interest by deed; wherefore by said conveyances they became sole owners of the lots. In conclusion the answer prayed title be adjudged in defendants. (Note: In one clause the answer sets up title through a deed under a tax proceeding and mesne con |