Adams v. Bounds

• Court: Mississippi Supreme Court
• Writing for the Court: McGEHEE
• Citation: Adams v. Bounds, 81 So.2d 235, 224 Miss. 518 (Miss. 1955)
• Decision Date: 13 June 1955
• Docket Number: No. 39683,39683
• Parties: W. B. ADAMS et ux. v. A. E. BOUNDS, Sheriff.

Page 235

81 So.2d 235

224 Miss. 518

W. B. ADAMS et ux. v. A. E. BOUNDS, Sheriff.

No. 39683.

Supreme Court of Mississippi.

June 13, 1955.

Lamar F. Easterling, Colbert Dudley, Jackson, for appellants.

O. B. Triplett, Jr., Forest, for appellee.

McGEHEE, Chief Justice.

The appellants W. B. Adams and wife, Vadie Moore Adams, file their bill of complaint on June 4, 1954, and obtained a temporary injunction to restrain a sale under execution of a two-acre parcel of land in the town of Raleigh, in Smith County, on which there is located a six room residence which was occupied by them and their four children as a homestead prior to the year 1951, when they moved to Jackson where they first rented a number of residences in succession until July 8, 1952, when they purchased Lot 13, Block B of the Belvedere Subdivision in the City of Jackson, on which there was located a residence, at a purchase price of $1,250 in cash and the assumption of an indebtedness of nearly $10,000 thereon.

At the time of the filing of this suit the residential property at Raleigh was being advertised to be sold on June 7, 1954, by the appellee A. E. Bounds, Sheriff of Smith County, under a chancery court decree in the original sum of $2,962.70 against the appellant W. B. Adams in favor of J. M. Griffin & Sons, Inc., rendered on January 24, 1950, and duly enrolled in the circuit clerk's office on February 17, 1950. On this enrolled judgment there was a balance due, according to the sheriff's notice of sale under execution, of the sum of $2,775.70, including $39.60 in court costs.

The principal issue presented for decision on this appeal is whether or not the residential property at Raleigh the was then being advertised by the sheriff for sale, constituted the homestead of the appellants so as to be exempt from sale under execution issued on the judgment hereinbefore mentioned.

The chancery court heard the case on but and answer, on the motion to dissolve the temporary writ of injunction, on oral and documentary proof, and on the suggestion of damages filed by the appellee. The court dismissed the bill of complaint, dissolved the temporary writ of injunction, and allowed the appellee an attorney's fee of $250.00 which was stipulated by agreement to be reasonable in amount. The appellants appealed with supersedeas from that decree, but of course did not undertake to supersede the judgment in favor of J. M. Griffin & Sons, Inc., against W. B. Adams, on which the execution had been issued.

Mr. Adams testified that he is a resident citizen of this state, a householder and the head of a family, and that he and Mrs. Adams have four daughters; that he and his family moved to Jackson 'somewhere around the latter part of 1951, I would say'. But Mr. Raymond Wann testified that he moved into the residence at Raleigh, formerly occupied by Mr. and Mrs. Adams, and the children, and began occupying the residence and paying rent thereon to Mr. Adams as of February 12, 1951. Mr. Adams further testified on cross examination that he had owned 120 acres of land about a half mile from the town of Raleigh, in Smith County, which he sold to Eurel Thornton on April 19, 1951. This 120 acres of land was included in the sheriff's notice of sale under the execution along with the two-acre lot and house in the town of Raleigh, since it belonged to the judgment debtor on February 17, 1951, when the decree of January 24, 1951, was enrolled. A separate suit was filed by Eurel Thornton against the sheriff to prevent the sale of this 120 acres that he had purchased from Mr. Adams, the question therein being whether or not this land was a part of the judgment debtor's alleged homestead in Smith County, on April 19, 1951, and with which we are not here concerned.

Mr. Adams also testified, in corroboration of the testimony of Mrs. Adams, that they moved to Jackson in order to educate their daughters, the oldest of whom entered Mississippi College shortly thereafter, and that this daughter and their second oldest daughter attended Belhaven College in Jackson during the next scholastic term; that these two daughters were attending summer school at Mississippi Southern College at Hattiesburg at the time of the trial of this case; that the oldest daughter would graduate at Belhaven College 'about midterm' of the next session thereafter; that the second oldest daughter would attend Belhaven College during the next session following the trial of this case and would graduate at the end of the year; that the third daughter had been attending Central High School in Jackson and would graduate during the next year; and that the youngest daughter, ten years of age, attends the public schools in Jackson. Mrs. Adams had testified that she and Mr. Adams were unable to send their daughters to college without moving away from Raleigh, and that they had moved to Jackson temporarily for the purpose of educating them, and that she and her family intended to return to Raleigh and resume their residence there whenever this purpose had been accomplished. Mr. Adams testified likewise. It is to be observed that this would have required several more years if the education of the ten-year old daughter was to be completed before the return of the family to Raleigh.

The proof further shows that Mr. Adams has been engaged continuously for the past four years in the 'oil leasing business', involving considerable travelling in Mississippi, Alabama, Texas, Louisiana and Florida, and that he is away from home 'practically all the time'; and the record fails to disclose that he is now engaged in any kind of business at Raleigh Mississippi, or that he has been so engaged there at any time since he moved to Jackson in 1951.

When Mr. Adams purchased the residential property in the Belvedere Subdivision of the City of Jackson on July 8, 1952, the title thereto was taken in his name and that of Mrs. Adams jointly. After having testified that they were paying rent to the Prudential Life Insurance Company on that property, he was asked: 'Q. You did have a deed to that place? A. We had a supplemented deed. We didn't have a warranty deed. Well, we have a warranty deed, but there was a clause that Prudential Insurance put in it.' It developed that what he meant was that when they bought the residence in the Belvedere Subdivision, there was a mortgage on the place in favor of the Prudential Life Insurance Company on which the purchasers were making monthly payments.

On March 31, 1954, Mrs. Adams filed with the tax assessor of Hinds County an application under oath for homestead exemption on the property in the Belvedere Subdivision in Jackson, in which she stated, among other things, that she was the wife of W. B. Adams and that 'This is the bona fide and only home of my family group, wherein we actually reside, and did on January 1, 1954.' She was referring to Lot 13, Block B, of the Belvedere Subdivision in Jackson therein above described.

Then, on May 25, 1954, she and her husband, W. B. Adams, filed a homestead declaration in Smith County, duly sworn to, in which they declared that 'We are entitled to homestead in said county and we have selected the same as follows: (describing in detail the two-acre lot in the town of Raleigh where they had lived prior to 1951)'.

Mrs. Adams further testified that when she filed the application for homestead exemption in Hinds County, she filed it by mistake; that she was supposed to go to Raleigh and file the same.

'Q. At the time you filed the application for homestead exemption in Hinds County, you were actually residing on the property described in that application, were you not? A. Yes, sir.

'Q. And that is where you live now, isn't it? A. We are renting from the Prudential Insurance Co.

'Q. That is where you are now? A. That is where we are. We have rented that for a year.'

It developed, however, in response to further questions by the attorney for the appellee that what she was undertaking to say was that the man from whom they bought the Jackson property had already secured a loan from the Prudential Life Insurance Company and had given it a note and deed of trust thereon payable in monthly installments. The trial court was warranted under all the testimony in finding that she evidently had no intention at the time she filed this homestead application in Hinds County to return to Smith County, or when she and her husband filed the homestead declaration there--in fact, she and the children were still residing in Jackson at the residence in the Belvedere Subdivision at the time of the trial of this cause and had continued to do so after the filing of the homestead declaration in Smith County, although the bill of complaint herein filed by Mrs. Adams and her husband, W. B. Adams, on June 4, 1954, alleges that 'On the ___ day of June, 1954, complainants re-occupied their homestead by moving into the residence located on the above described lot or parcel of land and presently occupy and reside thereon as their homestead.'

The proof discloses that as a matter of fact about the middle of May 1954 Mr. Adams, while all of the other members of the family were still residing in their residence located in the Belvedere Subdivision in the City of Jackson, obtained the consent of his then tenant, Robert L. Stevens, to move some things into the back room of the of the house in the town of Raleigh, stating to the tenant at the time that J. M. Griffin & Sons had a judgment and were trying to sell his property and he wanted to move in that room and occupy it. Stevens testified that he raised some question with Mr. Adams about his family not liking to live with anyone else 'since we had children', and that Mr. Adams said that his family was in Jackson and that the girls were in school, but that 'he would want to stay there himself and that he would be in and out, * * * that he was sure he would not bother me.'

The proof fails to disclose whether Robert L. Stevens was...