Cliett v. First Nat. Bank of West Point

• Citation: 181 So. 713,182 Miss. 560
• Decision Date: 30 May 1938
• Docket Number: 33140
• Court: United States State Supreme Court of Mississippi
• Parties: CLIETT et al. v. FIRST NAT. BANK OF WEST POINT et al

181 So. 713

182 Miss. 560

CLIETT et al. v. FIRST NAT. BANK OF WEST POINT et al

No. 33140

Supreme Court of Mississippi

May 30, 1938

Division B

Suggestion Of Error Overruled June 20, 1938.

APPEAL from the chancery court of Clay county, HON. JAMES A. FINLEY Chancellor.

Suit by Careta Lofton Cliett and husband against the First National Bank of West Point and others, to enjoin the foreclosure of a trust deed and to establish a homestead right in the land embraced in the trust deed. From an adverse judgment plaintiffs appeal. Affirmed.

Affirmed.

J. E. Caradine and B. H. Loving, both of West Point, for appellants.

We take the position, first, that this case should be reversed and rendered as to the one hundred sixty acres of land claimed as a homestead, for the reason that there was no abandonment of the homestead in question by either Cliett or his. wife and that an abandonment by the wife is necessary as well as by the husband, where the land had theretofore been impressed with the characteristics of a homestead, as a necessary sequence to the decision of this court in the case of Columbian Mutual Life Ins. Co. v. Jones, 133 So. 149, which case overrules the line of decisions of this court following Pounds v. Clark, 70 Miss. 263, 14 So. 22, and, second, that this case should be reversed and rendered as to the outright and absolute order in said decree directing the delivery of the part of the crops, and, third, in the alternative, if we are mistaken on the question of the homestead exemption, that the case should be reversed and remanded for new trial as to the moratorium feature of the bill, because there was no proper predicate and evidential basis for the decree rendered with reference to the same and the same was unjust, unreasonable and arbitrary and made with no proof before the court.

We wish to call the attention of the court to the rule, which has been maintained in this jurisdiction from the earliest times to the present time, and which cannot be disputed, and which is to the effect that our exemption laws are to be liberally construed in favor of exemptionist to effectuate the purpose of these statutes and to protect the homes which furnish the shelter and means of life to innocent women and children from the demands of creditors and from the improvident acts of the husband. This rule is so unanimously recognized that it is hardly necessary to cite authorities in support of the same, but nevertheless we will call the court's attention to several, which are Jackson v. Coleman et al., 76 So. 545; Gilmore v. Brown, 93 Miss. 63, 46. So. 840; Hinds v. Morgan, 75 Miss. 509, 23 So. 35; Campbell v. Adair, 45 Miss. 170; Gardner v. Cook, 158 So. 150.

The proof of this abandonment under all of the authorities must be clear and decisive and beyond all reasonable grounds of dispute, and as is stated by this court in one case, a doubtful or mixed case on this point is not sufficient. The burden of proof as to showing this abandonment to this degree is upon the one asserting the abandonment, and in this case is upon appellees. It must be clear from the proof that the removal was with the intention of not returning.

Jackson v. Coleman, 76 So. 545; Gilmore v. Brown, 93 Miss. 63, 46 So. 840.

The proof of the abandonment of a homestead in a case of this character must be clear and decisive of an intention on the part of a spouse to abandon the homestead, accompanied by a removal from the premises.

Campbell v. Adair, 45 Miss. 170.

Likewise, homestead statutes are to be construed sensibly, but liberally, in favor of the exemptionist.

Gardner v. Cook, 158 So. 150; Hardesty v. Warner, 130 La. 335, 58 So. 527; Hinds v. Morgan, 75 Miss. 509, 23 So. 35; Moseley v. Anderson, 40 Miss. 49.

We take the position, further, that for an abandonment of the homestead rights to be an abandonment thereof, such abandonment must exist on the part of Mrs. Cliett as well as her husband and that she must have left the premises with no intention of returning and, we take this position fully mindful that there are decisions of this court to the effect that the husband may select the domicile of the family and may change the same without the consent of the wife, but we take the further position that these cases have been necessarily overruled or modified in this respect by the recent decision of this court in the case of Columbian Mutual Life Ins. Co. v. Jones, 160 Miss. 41, 133 So. 149.

McDonald v. Sanford, 88 Miss. 633, 41 So. 369, 117 Am. St. Rep. 758, 9 Ann. Cas. 1; Young v. Ashley, 123 Miss. 693, 86 So. 458.

We also desire to call the court's attention to the fact that there is a line of decisions in other states to the effect that the husband cannot abandon the homestead without the consent of the wife, though this is perhaps in the minority rule, and in considering the cases on this question, of course, the provisions of various statutes must also be considered as well as the decisions of the court construing such statute.

Way v. Scott, 118 Iowa 197, 91 N.W. 1034; Weatherington v. Smith, 77 Neb. 363, 109 N.W. 381, 124 Am. St. Rep. 855, 13 L.R.A. (N.S.) 430, 77 Neb. 369, 112 N.W. 566; Long v. Talley, 201 P. 990; Alton Mercantile Co. v. Spindel, 42 Okla. 210, 140 P. 1168; Jones v. Jones, 281 Ill. 595, 117 N.E. 1013.

The absolute order directing a delivery of part of the crops is reversible error.

The decree as to the moratorium is reversible error.

This part of the decree grants an injunction, where none then existed, from September 2nd to January 1st, 1938, a little less than four months in point of time, upon the condition that appellants pay to the bank one-fourth of the cotton raised on the land for the year 1937 and one-third of all of the other agricultural products raised thereon during such year, which is the common share rental basis for one year and thus, a year's rent was required to be paid for an injunction extending only four months. We think that this in itself was unreasonable and arbitrary and went further than was authorized by the statute.

Sec. 4, Chapter 287, Laws of 1936.

Frank A. Critz, of West Point, for appellees.

Appellants claim that 160 acres, including the residence on the farm, was a homestead, and that since the wife did not sign the deed of trust, that said deed of trust is void or voidable. If it was a homestead at the time of the execution of the deed of trust, it should have been signed by the wife to make it legal; but if it was not a homestead at that time, the legal title being in the husband, the deed of trust executed solely by the husband conveyed the entire property to the trustee for use of the bank, subject to the right of redemption written thereon.

A husband can abandon the homestead without the consent of the wife.

13 R. C. L. 651, sec. 112.

It is a principle of universal law that the domicile of the husband is the domicile of the wife. Story's Con. of Laws. Nor is the assent of the wife necessary to enable the husband to select and fix the homestead. He may change it at pleasure without her consent.

Thorns v. Thorns, 45 Miss. 276; Burkhardt v. Walker & Son, 102 Am. St. Rep. 393; Farmers, etc., Loan Assn. v. Jones, 68 Ark. 76, 82 Am. St. Rep. 280; Cramer v. Lamb, 84 Minn. 468; Surfer v. Surfer, 72 Miss. 345.

Intention to return must exist at the time of removal from the homestead. An intention afterwards formed will not prevent the abandonment from becoming perfect in the meantime. And if the abandonment has once become complete, the homestead is as though it had never existed.

Phillips v. Springfield, 39 Ill. 83; Carter v. Goodman, 11 Bush, 228; Taylor v. Hargous, 60 Am. Dec. 608; Smith v. Bunn, 75 Mo. 559; White v. Roberts, 112 Ky. 788; Murphy v. Farquhar, 39 Fla. 350, 22 So. 681; Kaes v. Gross, 92 Mo. 647, 1 Am. St. Rep. 767; Thompson v. Tillotson, 56 Miss. 36; Majors v. Majors, 58 Miss. 806; Lewis v. Ladner, 172 So. 312.

In the case at bar, the appellant, S. A. Cliett, left the homestead with the intention of returning, but at the time of the making of the deed of trust, he had changed his intention and thus lost all homestead rights in the 220 acres.

Ritter v. Whitesides, 179 Miss. 706, 176 So. 728.

Under the moratorium act itself, the Chancellor is given wide discretion in entering orders as to the payment of taxes, to the mortgagee, etc., and so long as he does not abuse this discretion, this court will not reverse any order made by him. It certainly is not apparent that he has abused this discretion when he orders the crop turned over amounting to the nominal rent for one year to the bank, the mortgagee, and especially when you consider that the bank, by the payment of taxes and accrued interest, the indebtedness has increased from $ 1500.00 to over $ 3,000.00, and especially, the appellants cannot complain of said order when in their brief they complain of the shortness of crops, and an order to deliver a certain part of the crop automatically takes care of any shortness of crop. So the appellants are not penalized by the order if the crop is short. I see no...