Biglane v. Rawls

• Decision Date: 13 May 1963
• Docket Number: No. 42631,42631
• Citation: 153 So.2d 665,247 Miss. 226
• Parties: Lester BIGLANE v. Mrs. Trannie RAWLS et al.
• Court: Mississippi Supreme Court

Page 665

153 So.2d 665

247 Miss. 226

Lester BIGLANE v. Mrs. Trannie RAWLS et al.

No. 42631.

Supreme Court of Mississippi.

May 13, 1963.

J. Martin Mooney, Seminary, for appellant.

Hugh B. McIntosh, John D. Kervin, Collins, for appellee.

Jack H. Ewing, Jackson, for Pan American Petroleum Corp.

McGEHEE, Chief Justice.

On November 26, 1917, Mr. W. A. Rawls, of Covington County, obtained a warranty deed from J. A. (Babe) Knight and wife for 140 acres of land including the S 1/2 of SE 1/4 of NE 1/4 and the NE 1/4 of SE 1/4 in Section 26, Township 8, Range 15 West in said County. Thereupon the said W. A. Rawls and wife, Mrs. Trannie Rawls, moved into the Babe Knight house located on the NE 1/4 of SE 1/4 of said section, township and range.

During the year 1925 the said W. A. Rawls and wife moved from the Babe Knight place onto adjacent land of his father, W. F. Rawls. That is to say, across the road from the Babe Knight house and into W. F. Rawls' larger and better house on the adjacent land to the west, where the said W. A. Rawls and his wife Mrs. Trannie M. Rawls resided until the year 1943, when W. A. Rawls died, and where the said Mrs. Trannie Rawls and her children continued to reside until March 1962,--a total of approximately thirty years--before this suit was filed by her, her children, and one of her grandchildren against the appellant Lester Biglane, who on December 9, 1932, purchased from W. A. Rawls one-half of the mineral interest in the minerals under the NE 1/4 of SE 1/4 and the S 1/2 of the SE 1/4 of NE 1/4 of said Section 26, Township 8, Range 15 West, without Mrs. Rawls joining in the execution of the two separate deeds. The fact is conceded.

The two mineral deeds from W. A. Rawls to his nephew, Lester Biglane, were executed as aforesaid on December 9, 1932, and were placed of record as to the 40 acres about 1:00 P.M. on that same day and the other deed for one-half of the minerals under the other 20 acres was filed for record about 5:00 P.M. of the same day, December 9, 1932, although the complainants did not actually know of either deed until the latter part of 1959.

The mineral deed for one-half of the minerals under said NE 1/4 of SE 1/4 contained the following words which were written in the handwriting of the grantor W. A. Rawls, and read as follows: 'This is no part of my homestead.' And in the deed to one-half of the minerals in the S 1/2 of SE 1/4 of NE 1/4 of said section, township and range, there was a similar notation in the handwriting of the grantor W. A. Rawls, reading as follows: 'This not being any part of homestead.'

The defendant in this suit, Lester Biglane, set up as his first defense the bar of the ten year statute of limitation under Sections 709 and 710, Code of 1942 Rec., and as a second defense he pled laches on the part of the complainants, since they had not challenged the validity of the mineral deeds from W. A. Rawls to the defendant Lester Biglane at any time from December 9, 1932, to March 1962, a period of thirty years. However, this Court held in the case of Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, that the question of laches is largely addressed to the sound discretion of the chancellor, and his decision will not be disturbed on appeal unless it is clearly wrong and amounts to an abuse of discretion. This disposes of the case as to the second defense pleaded.

As to the bar of the statutes of limitation under Sections 709 and 710, Code of 1942, the complainants set up as a defense thereto that neither the defendant Biglane, nor anyone claiming under him, had ever invaded the rights of the complainants by an adverse entry, and that the complainants had themselves been in the continued open, notorious, and uninterrupted possession of the land since the execution of the mineral deeds on December 9, 1932. Beginning with the case of Dingey v. Paxton, 60 Miss. 1038, the rule has now become well settled that one, who is already in the possession and enjoyment of the that he claims, cannot be required to commence a suit until there has been an adverse entry upon the land involved in a controversy. Until complainants' possession of the land here in question is invaded, they are not required by any statute of limitation to bring a suit to recover the real estate of which they are already in full enjoyment.

The present suit was filed by Mrs. Trannie Rawls, her children and one of her grandchildren in March 1962, and the chancery court was asked to appoint commissioners to designate and select the homestead of the grantor as of December 9, 1932. The complainants, who are the appellees here, selected one commissioner, the appellant, Lester Biglane, selected one commissioner, and the chancellor appointed the third commissioner, who was approved by the attorneys for both the complainants and defendant. Those commissioners found that as of December 9, 1932, the said W. A. Rawls, grantor in the two mineral deeds, then owned a total of 211.5 acres of land, including the 60 acres under which he had sold one-half of the minerals to the said Lester Biglane. These 60 acres of land were selected by the commissioners, with one of them not consenting thereto, as a part of the homestead of W. A. Rawls as of December 9, 1932.

Section 322, Code of 1942, is the statute which provides for the appointment of commissioners to designate and select the homestead of the exemptionist, where he has not done so in the manner provided by law in his lifetime. And the chancellor found that W. A. Rawls and not designated and selected his homestead in his lifetime in the manner provided by law, and the proof disclosed that they designated and selected less than 160 acres out of a total of 211.5 acres, but which selection included the 60 acres described in the two mineral deeds in question, together with the W. F. Rawls old home place, owned by W. A. Rawls on December 9, 1932, and on which the dwelling house was located, all of a total area of not exceeding 160 acres and value of not more than $3,000, which consisted of contiguous parcels in the form of a square or parallelogram as nearly as practicable as provided by Sections 319 to 323, inclusive, Code of 1942.

The appellant also set up as a third defense to the proceedings last above mentioned that the said W. A. Rawls had in his lifetime made the said designation and selection of his homestead, as being lands other than the 60 acres, on which he had conveyed one-half of the minerals to the appellant, by his notation in each of these mineral deeds in his own handwriting that the land therein described was no part of his homestead. In other words, that he by the above mentioned notations designated and elected that his homestead would be on lands other than the 60 acres therein described, and in support of this contention appellant cites the cases of Rutherford v. Jamieson, 65 Miss. 219, 3 So. 412, and the prior case of Majors v. Majors, 58 Miss. 809. But this action on the part of the grantor was a designation and selection of the homestead by the head of the household and substantially as required by Section 322, Code 1942. Moreover, Mr. and Mrs. W. A. Rawls and during the year 1931 executed a deed of trust in favor of the Commercial Bank & Trust Company at Laurel, Mississippi, on 73 acres of other contiguous land, and stated in the deed of trust that said land constituted a part of their homestead.

In the case of Rutherford v. Jamieson, supra, the Court stated: 'Mr. Rutherford sustained such relation to several parcels of land as to be entitled, at the time of this transaction, to select which was his homestead, and in executing the deed of trust conveying some of these parcels he must be held to have made his selection of other land than that conveyed for his homestead, and will not be permitted now to say that his homestead consisted of the land conveyed. Homestead rights are to be protected according to law, but are not to be perverted into instruments of fraud.' (Italics ours). Rutherford himself brought that suit, but was not permitted to change his position to the detriment of the appellee Jamieson.

There are several established principles which are pertinent to the facts of this case. First, the husband, as head of the family, has the right to select the homestead, and the wife is bound by his selection, if it is made in good faith and not for the purpose of defeating her rights. Tanner v. Tanner, 111 Miss. 460, 71 So. 749; Ritter v. Whitesides, 179 Miss. 706, 176 So. 728; Cliett v. First National Bank, 182 Miss. 560, 181 So. 713; Livelar v. Kepner, (Miss.) 146 So.2d 346; 40 C.J.S. Homesteads, Sec. 47; see Miss. Code 1942, Rec., Secs. 319-323.

Second, a conveyance, even though it is invalid as to the homestead, may be sufficient to convey that portion of the property covered by the conveyance which is in excess of the statutory exemption. This rule is summarized in 40 C.J.S. Homesteads Sec. 146, as follows: 'While there is authority to the contrary, the general rule is that a deed or mortgage covering the homestead and other lands, or covering a single tract whose value exceeds the statutory exemption, although it is invalid as to the homestead, may yet be sufficient to convey or encumber that portion of the property which is in excess of the statutory exemption. The same rule applies to contracts to convey as well as to conveyances and mortgages, and also to leases.'

To the same effect is 26 Am.Jur., Homestead, Sec. 135: 'If property in excess of the statutory amount is described in the instrument of conveyance, the grant, although not concurred or joined in by both spouses, is operative as to the part which is not subject to the homestead right. Where a husband alone executes a conveyance of a tract of land, and the tract includes both the homestead exemption and land in excess of the exemption, it is generally held that although the conveyance is invalid as to the homestead premises, it is a...