Breland v. Parker

• Decision Date: 07 May 1928
• Docket Number: 27091
• Citation: 150 Miss. 476,116 So. 879
• Court: Mississippi Supreme Court
• Parties: BRELAND et al. v. PARKER et al. [*]

116 So. 879

150 Miss. 476

BRELAND et al. v. PARKER et al. ^[*]

No. 27091

Supreme Court of Mississippi

May 7, 1928

Division B

1 EXEMPTIONS. Exemption laws are liberally construed in favor of exemption.

Exemption laws are liberally construed in favor of the citizen head of the family claiming the exemption.

2 HOMESTEAD. Recital in deed from husband to wife that land was not his homestead held not to estop her from establishing and asserting homestead rights therein.

That deed from husband to wife recited that the land conveyed constituted no part of his homestead did not estop her from asserting her homestead rights thereafter established, by using and occupying, as part of her homestead, enough of such land adjoining the home place as with it would make up the permitted one hundred and sixty-acre exemption.

3 HOMESTEAD. Wife's deed of homestead, without living husband joining, is void.

Conveyance of part of grantor's exempt homestead, without her husband, who was alive, joining therein, was void.

4. HOMESTEAD. Purchaser held put on notice, by possession as part of homestead, of unrecorded reconveyance of part of tract and purchase-money mortgage on balance.

That when defendant purchased from P. two hundred-acre tract of land, deed of which from plaintiff to P. was on record, plaintiff was in possession of one hundred and twenty acres of it, using and occupying it as part of her homestead, and defendant's attorney told him that he had the impression that P. had reconveyed part of the tract to plaintiff, put defendant on inquiry of plaintiff which would have revealed that, as part of same transaction in which plaintiff conveyed the entire tract to P., P. gave a reconveyance of the one hundred and twenty acres and a purchase-money mortgage on the eighty acres to plaintiff, neither of which was recorded, so that defendant was not an innocent purchaser without notice of the mortgage.

HON. V. A. GRIFFITH, Chancellor.

APPEAL from chancery court of Perry county, HON. V. A. GRIFFITH, Chancellor.

Suit by Mrs. D. F. Breland and others against C. R. Parker and another. From a decree dismissing the bill, plaintiffs appeal. Reversed and remanded.

Decree reversed and cause remanded.

Currie & Currie, for appellants.

E. J. Mathis, Jr., acquired no title by virtue of his said deed, to the land occupied by the complainants as a home. Sec. 1901, Hem. Code, 1927; sec. 1914, Hem. Code 1927. See Chatman v. Poindexter, 101 Miss. 496, 58 So. 361, in which it was held that under sec. 2159, Code of 1906, a deed to the homestead, executed by the husband alone, is invalid, though the wife is one of the grantees. 29 C. J., 893, par. 275; Spoon v. Van Fossen, 53 Iowa 494, 5 N.W. 624; Orr v. Shraft, 22 Mich. 264; Dollman v. Harris, 5 Kan. 599; Dickinson v. McLane, 57 N.H. 31. This court has repeatedly held that a deed conveying the homestead which is not signed by both husband and wife is void. These authorities end this lawsuit. Under them E. J. Mathis, Jr., has no title to the land.

Mayson & Kelly and Paul B. Johnson, for appellees.

With reference to some of the contentions made in the brief of learned counsel for appellant, we have to say that counsel for appellant is mistaken in supposing that the land in controversy had, at any time, ever constituted a part of the homestead, either of Mrs. Breland or of Mr. Breland, her husband, during his lifetime. Though the land was a homestead, to make a valid conveyance of one spouse to another, it was not necessary for the vendee spouse to join in the conveyance as grantor. Note to Jergee v. Ferbursh, 95 Am. St. Rep. 923. Chatman et al. v. Poindexter, 101 Miss. 496, 58 So. 361, is not in point. In that case the party was seeking to impress the homestead with a lien for work done, and the statute authorizing such procedure was not followed. The conveyance from the husband to the wife in this case would have been perfectly valid, though a homestead, but it was never impressed with the characteristics of a homestead. They never lived on it at any time. It was acquired by Mr. Breland at a trustee's sale and he specially recites in his conveyance to Mrs. Breland that the land in controversy was no part of his homestead.

It is to be borne in mind that the appellee (Mathis) . . . was in no sense a party to the transaction between the spouses when Mr. Breland conveyed to Mrs. Breland. Whether or not the law was carried out made no difference as far as appellee was concerned, because he was a bona-fide purchaser. Johnston v. Wallace, 53 Miss. 331.

Currie & Currie, in reply, for appellants.

Counsel for the appellee contend that Mrs. D. F. Breland, the wife, now the widow of D. F. Breland, deceased, is estopped to assert that the land was the homestead, for the reason, that D. F. Breland, the husband, recited in his deed to her that the land composed no part of the homestead, in reply to which see 29 C. J. 960; Hines v. Morgan, 75 Miss. 509, 23 So. 35; Barber v. Babbel, 36 Cal. 11; Mix v. King, 55 Ill. 434; Hagerty v. Brower, 105 Iowa 395; Morris v. Sergeant, 18 Iowa 90; Williams v. Sweatland, 10 Iowa 51; Wicks v. Smith, 21 Kan. 412; Ayres v. Probasco, 14 Kan. 175; Underwood v. Dry Goods Co., 129 La. 450, 56 So. 364; Law v. Butler, 44 Minn. 482; Giles v. Miller, 36 Nebr. 346; Whitlock v. Gossom, 35 Nebr. 829; McHugh v. Smylie, 32 Neb. 766; Goldman v. Clark, 1 Nev. 607; Hoge v. Hollister, 2 Tenn. Ch. 606; Real Estate Ass'n v. Stewart, 94 Tex. 441.

"The homestead rights of a wife cannot pass by estoppel except where the estoppel is predicated upon conscious and affirmative fraud on her part." Durham v. Luce, 140 S.W. 850; Yaseen v. Green, 140 S.W. 824; Smith v. Allmendinger, 41 S.W. 144. One hundred sixty acres claimed as a homestead in this case is composed of abutting tracts of land, and there is no statutory provision in this state prohibiting the selection of such tracts as a homestead. "In the absence of express provision to the contrary, adjoining, tracts or lots not exceeding in extent and value the limit fixed by constitutional or statutory provision may be selected as a homestead." 29 C. J. 829; Hines v. Morgan, 75 Miss. 509, 23 So. 35; Wiseman v. Parker, 73 Miss. 378, 19 So. 102; Colbert v. Henley, 64 Miss. 374, 1 So. 631; Baldwin v. Tillery, 62 Miss. 378; King v. Sturgess, 56 Miss. 606; Building Ass'n v. Loab, 66 Fed, 827. The decree of the lower court in this case is contrary to the whole law of the land relating to the homestead, contrary to the statute of this state and the decisions of this court, and if allowed to stand would overthrow the public policy on which the same are based.

Argued orally by N. T. Currie, for appellant.

OPINION

ANDERSON, J.

Appellant Mrs. Breland and her husband, now deceased, filed their bill in the chancery court of Perry county against appellees C. R. Parker and E. J. Mathis to cancel certain conveyances set out in the bill of a tract of land of approximately two hundred acres, known as the Daughdrill place, in Perry county, alleging that such conveyances were a cloud upon their title to a part of the lands (about one hundred twenty acres) and upon their mortgage rights in the balance of it (about eighty acres), and to foreclose a deed of trust in favor of appellant Mrs. Breland on the eighty-acre tract. Appellee Parker answered the bill, as did appellee Mathis, the latter making his answer a cross-bill, to which cross-bill appellant Mrs. Breland, her husband, and appellee Parker were made defendants. The cross-bill was answered by the defendants thereto, and there was a trial on the pleadings and proofs offered by the respective parties, resulting in a final decree dismissing the original bill. From that decree appellants prosecute this appeal.

During the pendency of the suit, the husband of appellant Mrs. Breland died intestate, leaving as his sole heirs appellant Mrs. Breland and seven minor children. The cause was thereupon revived in her name and the names of her children by her as next friend.

The land involved is described as the southeast quarter and the east half of the southwest quarter of section 4, township 2 north, range 9 west, in Perry county. It is known as the Daughdrill place, and the section in which it is located must be a short section, because in the evidence the tract is referred to as containing approximately two hundred acres. The description of the tract shows that it contains one-quarter and one-half of a quarter. Therefore, if the section in which it is located is a full section of six hundred forty acres, the tract contains two hundred forty acres.

For a proper understanding of the questions involved, it is necessary to divide the Daughdrill tract into two tracks, one containing about eighty acres, and the other about one hundred twenty acres. It is not deemed necessary to set out how these two tracts are divided. In this opinion the Daughdrill tract will be treated as containing two hundred acres, subdivided into two tracts, one of one hundred twenty acres, and the other of eighty acres.

Adjoining the two hundred acres was the home of appellant Mrs. Breland and her husband, during the lifetime of the latter. After the death of her husband, it continued to be her home up to and including the time of the trial of this case. It had been the family home for about fifteen years. It consists of forty acres.

J. L Daughdrill, the owner of the Daughdrill tract of land, on the 2d of January, 1919, executed a deed of trust thereon in favor of the Federal Land Bank of New Orleans, to secure an indebtedness due that bank of nine hundred dollars. On the 12th day of February, 1923, this deed of trust was foreclosed in pais, when the husband of the appellant Mrs. Breland became the purchaser of the land covered...