Bank of Cruger v. Hodge

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: Bank of Cruger v. Hodge, 189 Miss. 356, 198 So. 26 (Miss. 1940)
• Decision Date: 14 October 1940
• Docket Number: 34164
• Parties: BANK OF CRUGER v. HODGE

198 So. 26

189 Miss. 356

BANK OF CRUGER v. HODGE

No. 34164

Supreme Court of Mississippi

October 14, 1940

APPEAL from chancery court of Leflore county, HON. R. E. JACKSON Chancellor.

Proceeding between the Bank of Cruger and Mrs. V. T. Hodge involving family homestead. From the judgment, the Bank of Cruger appeals. Reversed and remanded.

Reversed and remanded.

G. R McMorrough, of Lexington, and Gardner, Denman & Everett, of Greenwood, for appellant.

The proof failed to show that residence as contemplated under the law had been re-established by the appellee, and the proof showed that the complainant actually abandoned the tract of land in question, took up their residence and home at other places in the state and have not re-established their residence in such manner as would entitle them to claim the property in question as a homestead.

Whenever the debtor shall cease to reside on his homestead, it shall be liable to his debts, unless his removal be temporary, by reason of some casualty or necessity, and with the purpose of speedily reoccupying it as soon as the cause of his absence can be removed.

Sec 1776, Code of 1930.

The reason for appellee's removal from her homestead is not such as is contemplated by law to be temporary by reason of some casualty or necessity.

Bank of Hattiesburg v. Mollere, 118 Miss. 154; Moore v. Bradford, 70 Miss. 70; Thompson v. Tillotson, 56 Miss. 36.

There was no intention of "speedily reoccupying" the homestead as required by the statute to preserve the homestead rights. From the language used in Bank of Hattiesburg v. Mollere, 118 Miss. 154, the cause of the abandonment being the same, it appears that appellee's intention in the present case is too general to meet the statutory requirements. Time has shown that appellee's intention is not specific and definite.

Does appellee's occupancy of the property in June, 1939 re-establish her residence in such a manner as would entitle her to claim the property in question as a homestead? Was it such as is within the contemplation of law, sufficient to create a homestead? We think not. At most, appellee's occupancy can only show an intention to make use of the property as a homestead at some future date. In our opinion, this is not enough. Appellee's sole purpose in returning to the property was to prevent its sale. There is no actual occupation at the present time.

To constitute a homestead there must be actual occupation and use of the premises as a home for the family. The premises must be appropriated, dedicated, or used for the purposes designated by the law, to-wit, as a home, a place to abide and reside on, 'a home for the family.'

Campbell v. Adair, 45 Miss. 170.

If one ceases to reside on his homestead without some casualty or necessity to cause his removal it becomes liable for his debts. The question in such case is: Was the ceasing to reside on homestead caused by some casualty or necessity such as the law contemplates? If this question is answered in the affirmative, the next question is: Was the removal temporary and with the purpose of speedily reoccupying the homestead as soon as the cause of his absence can be removed? In determining the first question the intent of the parties as to removal or re-occupying is not a matter of consideration. In the other, it is an important subject of inquiry.

Moore v. Bradford, 70 Miss. 70; Wright v. Wright, 160 Miss. 236.

"Temporary removal" means a removal for a fixed and temporary purpose or for a temporary reason, and in order to prevent abandonment of a homestead by such removal it must be made with a certain and abiding intention of returning to the homestead and abiding thereon as a homestead.

8 Words and Phrases 6902; 90 Wis. 362.

Alfred Stoner, of Greenwood, for appellee.

In legal contemplation, a homestead is not abandoned by a debtor who, on account of the depression, which existed in the year 1932 and continued until the year 1938, is compelled to leave his homestead in order to earn sufficient money with which to farm it, he intending during his entire absence to return as soon as the necessary money is earned.

Laws of 1934, p. 518; Jefferson Standard Life Ins. Co. v. Noble, 118 So. 289; Code 1930, sec. 1776; Moore v. Bradford, 70 Miss. 70, 11 So. 630; Thompson v. Tillotson, 56 Miss. 36; Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87; Mounger v. Gandy, 110 Miss. 133, 69 So. 817; Campbell v. Adair, 45 Miss. 170; Gilmore v. Brown et al., 93 Miss. 63, 46 So. 840; Jackson v. Coleman, 115 Miss. 535, 76 So. 545.

We submit that when in the month of May, 1932, it became apparent that the appellee could not borrow sufficient money with which to farm, there was absolutely nothing left for them to do but leave and seek employment. It was either that or starvation, and if such situation does not constitute "casualty" or "necessity" necessitating their leaving, then we are at a loss to imagine a situation that would justify their temporary removal.

The statute merely requires that the debtor must have in mind "the purpose of speedily reoccupying it as soon as the cause of his absence can be removed." In other words, it is only necessary that he have the intention to reoccupy the property speedily after the cause of his absence can be removed. In short, the debtor is not required to speed up or go from low into high until after the cause of his absence is removed.

Code of 1930, sec. 1776; Thompson v. Tillotson, 56 Miss. 36.

Counsel also confuse those instances wherein the debtors left their homesteads because they could "do better" elsewhere and these instances wherein it is not a case of "doing better, " but rather of not doing at all unless the homestead is temporarily left.

Moore v. Bradford, 70 Miss. 70, 11 So. 630; Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 Miss. 87.

Assuming for the sake of the argument that such homestead had been abandoned, it is permissible for the exemptionist to again move into the homestead property the day before an execution sale is to be made and thus defeat the sale.

Trotter v. Dobbs, 38 Miss. 198; Lessley v. Phipps, 49 Miss. 790; Irwin v. Lewis, 50 Miss. 363; Letchfort v. Cary, 52 Miss. 791; Wood v. Bowlen, 92 Miss. 843, 46 So. 414, 131 Am. St. Rep. 559; Jones v. Hart, 62 Miss. 13; Dullion v. Harkness, 81 Miss. 8, 31 So. 416.

Argued orally by Richard Denman, for appellant, and by Alfred Stoner, for appellee.

Griffith, J., Ethridge, J., dissenting.

OPINION

Griffith, J.

Appellee is the owner of the land in question and she occupied it with her husband and two daughters as the family homestead during the years, 1931 and 1932. During the latter year, however, owing to the financial depression then extremely prevalent throughout the country, and because they were unable to secure the advances necessary to make a crop, they were obliged to remove to a town in a neighboring county where the husband had obtained employment. He continued in various employments in different towns until on or about June 1, 1939, at which time the family was residing at Greenwood and the husband was employed as collector by a furniture company there.

On October 19, 1937 a judgment was rendered in favor of appellant and against appellee and her husband, which judgment was duly enrolled in the office of the circuit clerk of the county in which the land is situated, and an execution having been issued under the judgment, the land was advertised by the sheriff to be sold on the 1st day of June, 1939. A day or two before the day of sale, appellee moved some of the furniture from the residence in Greenwood to the house on the land in question, and thereafter appellee and one of her daughters, the other daughter being then married, spent one or two nights during every week end on the land, but the week days were usually spent at the residence in Greenwood, where the daughter was in school and where the husband continued in his employment as aforesaid.

The contention of appellee is that she had never abandoned her homestead, but that her removal in 1932 was temporary, by reason of the necessity aforesaid, and that throughout the intervening seven years next preceding the advertised date of sale under the execution, she and her husband had maintained the intention and purpose of reoccupying the homestead as soon as the cause of their absence could be removed. See Sec. 1776, Code of 1930. Their testimony is to the effect, however, that their intention to return was when they had been able to make enough money, in employment away from the homestead, to buy the necessary farming equipment and to maintain themselves on the farm homestead; that during the seven years absence they had not been able to do this, and throughout the testimony there is no indication when, or whether ever, they will be so able. The statute allows only a removal which may be justly adjudged as temporary and requires a speedy return as soon as the cause of the absence can be removed; but according to the testimony, the obstacle in the way of a speedy return may never be removed. The case is controlled, therefore, by the rule as reviewed in Bank of Hattiesburg v....