Bollen v. Lilly

• Decision Date: 30 January 1905
• Citation: 37 So. 811,85 Miss. 344
• Court: Mississippi Supreme Court
• Parties: CHARLES J. BOLEN v. RICHARD G. LILLY ET AL

37 So. 811

85 Miss. 344

CHARLES J. BOLEN v. RICHARD G. LILLY ET AL

Supreme Court of Mississippi

January 30, 1905

FROM the circuit court of Pontotoc county, HON. EUGENE O. SYKES Judge.

Bolen the appellant, was plaintiff, and Lilly and others appellees, were defendants in the court below. From a judgment in defendants' favor the plaintiff appealed to the supreme court. The action was ejectment. The facts are stated in the opinion of the court.

Reversed and remanded.

R. V. Fletcher, for appellant.

The land in controversy was part of the homestead. Bolen is not precluded from recovering in this suit. This question is free from difficulty under the repeated decisions of this court. A deed to the homestead without joinder of the wife is void and operates nothing. Hubbard v. Sage Land & Improvement Co., 81 Miss. 616.

A conveyance of the homestead without the joinder of the wife is void, and the property descends to the heirs and they may hold the same. Johnson v. Hunt, 79 Miss. 639.

The non- joinder of the wife renders the deed void, and an action at law may be maintained by the husband, the grantee being but a mere trespasser. G. & S. I. R. R. Co. v. Singleterry, 78 Miss. 772.

That the parties have removed from the premises makes no difference. The deed has conveyed no estate whatever. McKenzie v. Shows, 70 Miss. 388.

That Bolen's wife is dead does not affect appellant's right to recover in ejectment. The cause is determinable by conditions existing when the suit was brought. Cummings v. Busby, 62 Miss. 195.

See also as to whether the death of the wife affects the question. Thompson on Homesteads and Exemptions, sec. 489; Martin v. Harrington, 87 Am. St. Rep., 704, and notes. There is no estoppel. McGhee v. Wilson, 56 Am. St. Rep., 72.

Fontaine & Fontaine, for appellees.

The twenty acres of land sued for in this action were not a part of appellant's homestead exemption. The exemptionist has the right to select his homestead exemption, and this not only of land in which he is owner of the fee, but also of a leasehold estate. Johnson v. Richardson, 33 Miss. 462; King v. Sturgess, 56 Miss. 606; Hinds v. Morgan, 75 Miss. 509. And in land owned in common. Lewis v. White, 69 Miss. 352. And when no selection has been made, in case the dwelling house is on a quarter section of land, it does not require that such quarter be allotted as a homestead to the exclusion of an adjoining section. Wiseman v. Parker, 73 Miss. 378.

Appellant could sell any part of the territory about the place of his home at his will and by his own act, so that he does not trench upon the statutory amount exempted. Nixon v. Hewes, 80 Miss. 88.

This he did, and at the time of the sale to appellees of this twenty acres of land, and after deducting the amount sold to appellees, he still owned and possessed a larger quantity of land than one hundred and sixty acres, all contiguous, and has all the time continued to own and possess the same. By the act of conveying this land to appellees he selected for his homestead the other land and cannot assert the invalidity of his deed. Rutherford v. Jamieson, 65 Miss. 219. And he will not be permitted to make a new selection of homestead and embrace therein the land conveyed to appellees. Richie v. Duke, 70 Miss. 66.

Appellant is estopped by his said deed conveying the land to appellees, and he will not now be permitted after the expiration of nine years to claim that it was part of his homestead, from the facts that it adjoined the land upon which his dwelling house was situated, and that at the time he made the conveyance he did not own the fee in a part of the other land he was possessed of, and to re-select his homestead. The deed is valid and appellant is bound by it.

OPINION

CALHOON, J.

The court peremptorily instructed the jury to find a verdict for the defendants in the state of case we will now set out Bolen, on December 23, 1893, being a householder and the head of a family, owned in fee simple one hundred and sixty acres of land, in a body, and of less value than $ 2,000, and had his home upon it with his family. Besides, he owned an undivided one- half interest in eighty acres adjoining and an undivided one-fifth interest in fifteen acres cornering on it, and a three-year lease of seventy- eight acres adjoining. So he then had, by lease, by undivided interests and in fee, three hundred and thirty-three acres of land, but was sole owner in fee of only one hundred and sixty acres, and on this he lived; and on that day (December 23, 1893) he conveyed by warranty deed twenty acres of this one hundred and sixty to Lilly and others, appellees, and this is the subject of this controversy. After this, and in 1895, Bolen removed from his old home, with his family, to the town of Pontotoc, where...