Board of Mayor And Aldermen of Town of Booneville v. Clayton

• Decision Date: 18 November 1929
• Docket Number: 28158
• Court: Mississippi Supreme Court
• Parties: BOARD OF MAYOR AND ALDERMEN OF TOWN OF BOONEVILLE et al. v. CLAYTON

124 So. 490

155 Miss. 428

BOARD OF MAYOR AND ALDERMEN OF TOWN OF BOONEVILLE et al. v. CLAYTON

No. 28158

Supreme Court of Mississippi

November 18, 1929

Division A

HOMESTEAD. Where wife signed separation agreement without coercion and separation followed, husband's deed to homestead without wife's signature was not void; "living with husband" (Hemingway's Code 1927, section 1914).

Where husband told wife to leave, but no violence was offered her and she executed separation agreement without coercion, and separation that thereafter followed was pursuant thereto, she was not "living with her husband" within meaning of Laws 1924, chapter 169 (Hemingway's Code 1927, section 1914), providing that conveyance of homestead owned by husband is not valid, unless signed by wife, if he be married and living with her, and husband's deed to homestead without wife's signature was not void.

HON CHAS. S. MITCHELL, Chancellor.

APPEAL from chancery court of Prentiss county, HON. CHAS. S MITCHELL, Chancellor.

Suit by Mrs. Bettie Clayton against the board of mayor and aldermen of town of Booneville and one Taylor. From the decree defendants appeal. Reversed and rendered.

The separation agreement referred to in the opinion follows:

"Contract for Division of Property and Release of Rights.

"By mutual agreement between the undersigned parties, this contract for division of property and release of marital rights is entered into by said parties, upon considerations hereinafter set out:

"W. H. Clayton, of Booneville, Miss., now owns a homestead in said town, described as follows: Part of block thirty-five and one-half of the Williams survey of the town of Booneville, Mississippi, more fully described as follows: Beginning at a point one hundred thirty feet south of the northwest corner of said block thirty-five and one-half, runs thence south along west boundary of said block one hundred ninety feet, thence east two hundred thirty-six feet to the east boundary of said block, thence north along east boundary of said block one hundred forty-three feet, thence west sixty-four feet, thence north forty-seven feet, thence west one hundred seventy-two feet to point of beginning.

"Said party also owns household furnishing in said home; also fixtures, supplies and general furnishings and equipment for restaurant, which last named things are now being used in a restaurant in the town of Booneville, Miss., known as the Gem Cafe.

"There is now a trust deed on the aforesaid first named property in favor of the Bank of Booneville in the sum of six hundred dollars and interest.

"In making a division between themselves of the aforesaid property, the parties hereto signing have agreed as follows:

"That the said indebtedness to said bank shall be first paid out of the proceeds of any and all sales of said property, and thereafter the remaining proceeds shall be divided between said parties as follows, that is to say: The said W. H. Clayton shall thereupon retain two-thirds of said net balance for himself and their child Gertrude Clayton and the other one-third of such net proceeds shall go to the said Mrs. Bettie Clayton.

"In order to facilitate matters in making sales of said property it is agreed that the said W. H. Clayton may sell any or all of said property and make delivery thereof and deeds thereto without the signature of the said Mrs. Clayton, she hereby agreeing to surrender any and all homestead rights in such property when a cash sum of money representing one-third of such net proceeds shall have been paid over to her, and thereupon the said W. H. Clayton may, and hereby is empowered to, make good and valid title to such property.

"It is further agreed that out of the two-thirds net proceeds so retained by the said W. H. Clayton he shall therefrom support and maintain, in so far as he is able, their said daughter Gertrude Clayton and her infant child, and thereafter upon the death of said W. H. Clayton, if the said Gertrude Clayton shall survive him, all right, title and interest in and to any such portion of said property as he may have shall thereupon go in full and in fee simple to the said Gertrude Clayton.

"It is agreed further beginning with the 1st day of September, 1923, and counting the month of September, 1923, as the first month, the said W. H. Clayton shall at the end of each calendar month pay to the said Mrs. Bettie Clayton the sum of twenty-five dollars from said date until such time as he shall hereafter dispose of said home and restaurant, the object of this clause being to provide the said Mrs. Clayton with twenty-five dollars per month until such time shall come as that she shall receive the above named one-third net proceeds of said property. Upon the said W. H. Clayton's paying over to the said Mrs. Bettie Clayton the sum of twenty-five dollars per month, as per the above terms, and upon paying over to her also the one-third net proceeds of sales of property as above set out, it is agreed and here made a portion of this contract that all marital rights existing between the undersigned parties are settled, and thereafter no rights of inheritance, support and maintenance, alimony or either such civil rights shall exist, all of which things are hereby settled in full. Witness our signatures this the 1st day of Sept., 1923.

On the back appeared the acknowledgment of the parties.

"W. H. CLAYTON.

"BETTIE CLAYTON.

"It is further agreed that W. H. Clayton has this day paid, and Mrs. Bettie Clayton has received herein, the sum of twenty-five dollars as a consideration herein in payment in full of Sept., 1923, payment as per terms of this contract."

Decree reversed.

J. A. Cunningham, of Booneville, for appellants.

Abandonment is a fact to be proved. From the statute it seems that ceasing to reside on it without the purpose of speedily reoccupying it as soon as the cause of the absence can be removed, amounts to an abandonment.

13 R. C. L., sec. 112; Lindsey v. Holley, 63 So. 223; Mounger v. Gandy, 69 So. 817.

Homestead laws are liberally construed in favor of the exemptionist, but never as a pretext to claim that which does not really and substantially exist.

Campbell v. Adair, 45 Miss. 170.

The character of any property as a homestead depends on intention, but it may be entirely destroyed by a removal of residence. Such removal, at any time, leaves the property standing like any other property and liable to sale or any other disposal by the owner at his pleasure.

Stanton v. Hitchcock, 8 Am. S. R. 824.

Where the wife signed separate agreement agreeing without coercion and separation followed, husband's deed to homestead without wife's signature was not void.

Hemingway's Code 1927, sec. 1914; Pannell v. Glidewell, 107 So. 273; 22 C. J., sec. 244; Johnson v. Outlaw, 56 Miss. 541; 11 Miss. & So. Digest, 1918, sec. 72; 21 C. J., secs. 221-2-3.

W. C. Sweat, of Corinth, and J. S. Finch, of Booneville, for appellee.

A wife will not lose her homestead rights in property upon which she and her husband had lived when the husband, by his cruelty has forced her to leave home, or, while away from home, has informed her that she cannot come back, or when she had come back to visit her sick daughter, even over his protest, informed her that she could not remain there.

Section 1914 of Hemingway's Code of 1927; Scott v. Scott, 73 Miss. 575, 19 So. 589.

A deed to the homestead by the husband, without the wife's joining, after she has been forced away from home by the husband, according to an unbroken line of decisions of this court, is absolutely void.

Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 48 So. 516; ...