Burns v. Horn Bros.

• Decision Date: 26 September 1932
• Docket Number: 30100
• Citation: 163 Miss. 482,143 So. 431
• Court: Mississippi Supreme Court
• Parties: BURNS et al. v. HORN BROS

143 So. 431

163 Miss. 482

BURNS et al. v. HORN BROS

No. 30100

Supreme Court of Mississippi

September 26, 1932

(Division B.)

APPEAL AND ERROR.

In suit to cancel trust deed, chancellor's decree for defendants based on finding on conflicting evidence that plaintiff never occupied land involved as homestead, as claimed, must be upheld, where there was sufficient evidence sustaining it.

Division B

APPEAL from chancery court of Simpson county.

HON. T PRICE DALE, Chancellor.

Suit by S.D. Burns and another against Horn Bros. From the decree complainants appeal. Affirmed.

Affirmed.

W. M. Lofton, of Mendenhall, for appellants.

The court erred in rendering a decree in favor of the appellees in the debt issue in this case for the reason that said appellees failed to make proof of the same by competent evidence.

For books to be competent as evidence, they must be shown to have been correctly kept. They must also be shown to be the books of original entry.

Pipes v. Norton, 47 Miss. 61; Broach et al. v. Wortheimer-Swartz Shoe Co., 21 So. 300; Hauenstein et al. v. Gillespie, 19 So. 673.

The deed of trust executed by S.D. Burns on the twenty-one and three-fourth acres of land was void, because it was his homestead and his wife did not join with him in executing the same.

The court is not left in doubt as the testimony conclusively shows that S.D. Burns only owns the twenty-one and three-fourth acres of land and that it is his home.

Hinds v. Morgan et al., 75 Miss. 509, 23 So. 35; Gilmore v. Brown, 93 Miss. 63, 46 So. 840.

The homestead exemption statute was not enacted for the benefit of the husband and father, but it was done for the purpose of affording shelter to the wife and the innocent and helpless children. If the husband and father can thus evade the effect of the statute that requires that his wife join with him in executing a deed of trust or deed of conveyance to the homestead, by inserting a clause in said instrument to the effect that it is no part of his homestead and if the courts will enforce the provisions of such an instrument when in truth and in fact it is his homestead, then our exemption statute would be worth absolutely nothing. This court has held that a deed through the husband alone is void.

Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 48 So. 516; Johnson v. Hunt, 79 Miss. 639, 31 So. 205.

If this court upon final consideration should find that the appellant, S.D. Burns still owes Horn Brothers any sum whatever, then as a matter of course no cancellation of the legal obligation could be made by this court. But this testimony conclusively shows that this twenty-one and three-fourth acres of land was the homestead of S.D. Burns, and that being true the deed of trust as to that land was void because of the failure of his wife to join with him in executing it. Then without cancelling any claims of indebtedness, this court will grant the petition of the said S.D. Burns and set apart to him the twenty-one and three-fourth acres of land as his homestead and therefore exempt from seizure under execution, and this court will at least reverse the decree of the lower court and modify it so as to allow him his said claim for exemption.

R. C. Russell, of Mendenhall, for appellees.

It is our contention that under the pleadings in this case, as well as the proof offered, that appellees were not required to make any discovery of any item or matter prior to the giving said note and deed of trust, but notwithstanding that we filed a complete itemized account of all transactions before and after the giving of the note and deed of trust, but when we did so, that did not shift the burden of proof from appellants to appellees.

The burden of proof rests on the party seeking to reopen an account upon which payments had been made, etc., by direct and specific evidence. It is not sufficient to raise a suspicion that the account is incorrect in certain particulars, but facts must be shown in the light of which the court may act with confidence and intelligence.

Clayton v. Boyce, 62 Miss. 390; Dickerson v. Thomas, 67 Miss. 777, 7 So. 503; Abraham v. McCurdy, 15 So. 137.

Upon the trial of this case the court, after hearing all the testimony found, as a matter of fact, and so decreed that the twenty-one and three-fourth acres was not the homestead of S.D. Burns at the time of the giving of said deed of trust.

Before any parcel of land can be impressed as a homestead, it must first be actually occupied as such by the one claiming it not by proxy and this testimony...