Bank of Hattiesburg v. Mollere

• Court: Mississippi Supreme Court
• Writing for the Court: STEVENS, J.
• Citation: Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87 (Miss. 1918)
• Decision Date: 08 July 1918
• Docket Number: 19308
• Parties: BANK OF HATTIESBURG v. MOLLERE ET UX

79 So. 87

118 Miss. 154

BANK OF HATTIESBURG v. MOLLERE ET UX

No. 19308

Supreme Court of Mississippi

July 8, 1918

Division B

APPEAL from the chancery court of Forrest county, HON. W. M. DENNY Chancellor.

Bill by the Bank of Hattiesburg against H. P. Mollire and wife. From a decree giving only partial relief prayed for, complainants appeal.

The facts are fully stated in the opinion of the court.

Decree reversed, and cause remanded.

Currie & Smith for appellant.

Under the facts as reflected by this record, we respectfully submit that the chancellor erred in holding that these people were still citizens and residents of this state and therefore entitled to the benefit of the homestead exemption laws thereof.

Section 2147 of the Code reads: "Exemptions in cities, towns and villages. Every citizen of this state, male or female being a householder and having a family residing in any city etc., shall be entitled to hold, exempt from seizure, etc., the land and buildings owned and occupied as a residence by such person, etc."

Section 2162 says: "Residents only to have exemptions. The exemptions in this chapter shall be allowed in favor of residents of this state only."

Section 2157 reads: "Ceasing to reside on homestead renders it liable. Whenever the debtor ceases to reside on homestead, renders it liable.--Whenever the debtor ceases 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 re-occupying it as soon as the cause of his absence can be removed."

These sections contain all the statutory law of this state touching the point at issue in this case, and upon their interpretation in connection with the facts of the case at bar hangs the decision of this court.

For the defendants to be entitled to the exemption claimed here they must be citizens and residents of this state, also householders having families. See above sections of the Code and cases there annotated, especially Meyer Bros. Drug Co. v. Fly, 63 So. 227.

We think this question can be greatly narrowed. The defendants had ceased to reside on this property in July, 1914, and the attachment was served in February, 1915. The case was tried in March 1916 and they were still living in New Orleans at that time, still having no definite idea as to when they would be able to return. Now section 2157 applies here. This provides that ceasing to reside on the homestead renders it liable to debts, unless the removal "be temporary, by reason of some casualty or necessity, and with the purpose of spedily re-occupying it as soon as the cause of his absence can be removed." Now there is something besides intention to be considered here. As was said by Chief Justice Campbell in Moore v. Bradford, 11 So. 630:

"The first inquiry, then, in this case is, was there any casualty or necessity, in contemplation of the law, authorizing these defendants to cease to reside on their homestead? We deny that the facts alleged by them as their excuse for their act are sufficient to constitute casualty or necessity. Thomas v. Tillotson, 56 Miss. 36. In this connection we beg again to call the court's attention to the case of the Drug Co. v. Fly, 63 So. 227, which is very similar to this case on its facts.

The intention here is too general; it should be specific, and definite; as was said in the Fly case, supra, quoting with approval Anderson's Law Dictionary in defining nonresidence: Actual cessation to dwell within a state for an uncertain period without definite intention as to time for returning although a general intention to return may exist."

We respectfully request that the court bear in mind that the exemption claimed here runs only to citizens and residents of this state; that the statute permits such persons to cease to reside on their homestead only because of the existence of casualty or necessity or some extraordinary misfortune, accident, or superimposed occurrence that will in its very nature go by and cease to be sooner or later, and then they must have a purpose, a definite intention of speedily returning to and reoccupying the temporarily abandoned homestead. Then bear in mind that these claimants here had absolutely cut loose from their homestead in this state and had moved everything (except what they sold to their tenants) they had in the way of household goods and effects into Louisiana and there set up housekeeping with their own things in a leased house, their people all there in their native city, where Mr. Mollere has a job in his own profession of electrician, which business he had quit several years before to go into the picture house business in Hattiesburg--he had failed in this new venture and now he is back where he came from at his old business. The only thing that connects him in any way with his Hattiesburg homestead is a vague, shadowy indefinite idea or hope that sometime, somewhere, somehow, he will be able by reason of increasing fortune or good luck, to go back to Hattiesburg to live. We respectfully submit that to bring this situation under the statute in question would be to absolutely nullify its force and effect and to forget the construction which this court has placed upon its carefully used words and phrases.

We therefore submit that the learned chancellor should be reversed and the attachment against this property should be re-instated to be dealt with according to law.

Currie & Currie, for appellee.

Under the facts of this record it would have been a travesty upon justice, a sacrilegious breaking up of the aspirations of a family, a shattering of the fond hopes for domestic felicity and prosperity between man and wife, a breaking up of a home, for the lower court to have held that this man's home was subject to seizure and sale under attachment. It would be a reversal of justice for this court to disturb the decree of the lower court.

The case of Meyer Brothers Drug Company v. Fly, 63, So. 227, the main case relied upon by counsel in the argument of this case before the lower court and also in the brief on file, in this court, is not an authority in support of their contention. The facts in the case at bar and on trial are that the return of the appellee to his homestead is dependent upon his success at New Orleans so as to enable him to return, or getting employment in the city of Hattiesburg whereby to enable himself to return. In the case of Meyer Bros. v. Fly, the facts were exactly the reverse. In that case it was the intention of the homesteader not to return provided he succeeded in business.

Counsel in their brief quote certain language employed by the court in ruling upon a question of the admissibility of testimony and complain at the views of the court therein expressed, and say that it is a total misconception of the law on the subject. We say that the learned Chancellor in the utterance quoted laid his judicial finger right on the very heart of the homestead exemption laws of this state.

In the quotation in counsel's brief from Moore v. Bradley, 11 So. 630, we find this expression: "And with the purpose of speedily reoccupying the homestead as soon as the cause of his absence can be removed."

In the case of Thompson v. Tillotson, 56 Miss. 36, quoted from by counsel in his brief, and in the quoted part thereof we find the following expression: "The two words may fairly imply other events impossible to enumerate."

If misfortune, poverty, lack of employment and starvation do not constitute necessity, one of the various other events" which justify temporary absence from the homestead under this Code section, then we confess our utmost inability to comprehend at all the object and purpose of this beneficent provision of the homestead laws in this state.

If the court will for a moment turn its attention to the homestead entry laws of the United States and consider them it will find that the United States...