Collins v. Bounds

• Decision Date: 11 May 1903
• Citation: 34 So. 355,82 Miss. 447
• Court: Mississippi Supreme Court
• Parties: WILLIAM N. COLLINS ET AL. v. JAMES A. BOUNDS ET UX

34 So. 355

82 Miss. 447

WILLIAM N. COLLINS ET AL. v. JAMES A. BOUNDS ET UX

Supreme Court of Mississippi

May 11, 1903

March 1903

FROM the chancery court of, second district, Marion county. HON STONE DEVOURS, Judge.

Bounds and wife, appellees, were complainants and Collins and another, appellants, were defendants in the court below. From an interlocutory decree, overruling a motion to dissolve injunction, defendants appealed to the supreme court. The opinion states the facts of the case.

Affirmed and remanded.

Mounger & Mounger and Harper & Potter, for appellants.

At the time the deed was executed to Collins, Bounds and his wife were not residing on the property. It was, therefore necessary for them to show beyond question that they had ceased to reside on the homestead alone because of some casualty or necessity within the meaning of the statute Majors v. Majors, 58 Miss. 806.

If the casualty or necessity for leaving the homestead be not such a casualty or necessity as is recognized by law, then the fact that they had a purpose of returning to the homestead cannot avail them. Moore v. Bradford, 70 Miss. 70.

There is no pretense in this case that Bounds ceased to reside on the homestead because of any casualty, and the only necessity shown by the evidence is that he did not own a horse with which to cultivate his own land, and, therefore, found it more advantageous from a business point of view to cultivate his father-in-law's land.

This is not such a necessity as the law contemplates to justify the abandonment of a homestead. It was not a necessity arising from an "emergency of an exceptional and temporary character." Thompson v. Tillotson, 56 Miss. 36.

Weathersby & Mayson, for appellees.

Appellants rely on the case of Majors v. Majors, 58 Miss. 806 to support their contention. Upon examination it will be seen that case is an authority for appellees. Both Mr. and Mrs. Majors owned a home, they moved to the wife's land and while there Mr. Majors executed a conveyance to his homestead, but died while he and his wife were residing upon her land. Had he lived to return to his homestead, it will not be seriously contended, as we take it, that his conveyance would have divested his wife of her rights in his homestead. The conditions existing at the time of the execution of the instrument determine its validity. Cummings v. Busby, 62 Miss. 195.

No doubt Majors intended to return to his homestead when he temporarily abandoned it, but died before he could do so.

It needs no authority to support the proposition that the husband has the right to select and fix the domicile of the family.

Though Majors might have entertained the intention to return to his home as long as he lived, but as a matter of fact he did not do so, and the rights of his wife in and to his homestead were predicable on his, and he having died away from it, the rights of the wife passed away at his death. Her rights were dependent upon his, and when death cut short his intention she had no interest in his land when she didn't reside there, and especially so when she was living on lands belonging to herself. But the case of appellees is very different from the Majors case. The wife had no lands of her own, the husband intended to return and in fact did return. If he had died while at Buckhalters the case might have been different. It must be remembered, however, that the case of Majors v. Majors, supra, was decided before section 1258, Code 1880, and 1983, Code 1892, were enacted; under Codes 1880 and 1892, no conveyance, etc., of a homestead, unless it be signed by the wife, or the owner if he be married and living with his wife, is valid.

Appellants contend that the burden of proof is on appellees to show that their absence was temporary, caused by some casualty or necessity, and with the purpose of speedily reoccupying the same. While we have shown this, it is not incumbent on us. There is quite a difference when the proceedings are in vitum and when the relations are contractual. Under the former, when an exception or attachment had been levied upon the homestead, it would devolve upon the debtor to show that his absence was due to some of the reasons mentioned in section 1981, Code of 1892; because it would be a case for the application of the maxim of the common law in case of public officials: "Omnia praesumuntur rite et solcuniter esse acta." But no such presumption attaches when the relation between the parties are contractual, for they...