Etheridge v. Webb

• Decision Date: 05 February 1951
• Docket Number: No. 37807,37807
• Citation: 210 Miss. 729,50 So.2d 603
• Parties: ETHERIDGE v. WEBB et al.
• Court: Mississippi Supreme Court

Page 603

50 So.2d 603

210 Miss. 729

ETHERIDGE v. WEBB et al.

No. 37807.

Supreme Court of Mississippi, Division A.

Feb. 5, 1951.

Henry L. Rodgers, and Boydstun & Boydstun, all of Louisville, for appellant.

Livingston & Fair, Louisville, for appellee.

ETHRIDGE, Commissioner.

Appellant attacks a deed executed by his wife to her home. He asserts that he had not abandoned it as his homestead. We hold that he had voluntarily separated from her, and that the conveyance is valid.

R. W. Etheridge, appellant and complainant below, seeks to cancel a deed to a house and lot in Louisville, Mississippi, executed by his wife, Mrs. Bernice Etheridge, appellee and one of the defendants in the trial court. He says that in a legal sense he was living with his wife at the time of the conveyance, their separation being her fault, the property was his homestead, and hence the deed was in violation of Sec. 332, Miss. Code of 1942, which provides that: 'A conveyance, mortgage, deed of trust or other incumbrance of the homestead where it is the property of the wife shall not be valid or binding unless signed and acknowledged by the owner and the husband if he be living with his wife * * *.'

Appellant and Mrs. Etheridge were married in California on November 16, 1933, and have had three children. At that time appellant was serving as an enlisted man in the United States Navy. After twenty-four years of such service, he obtained in 1945 an honorable discharge and a retirement pension from the Navy. Appellant is a native of Winston County, Mississippi. He and his wife were living in California when World War II began, and shortly after that she with their children moved to Louisville, Mississippi. For a while she and the children lived in Louisville in the home of a relative of appellant, but after a short time she purchased the home here in question for $2,250.00. Mrs. Etheridge borrowed most of the money to purchase this place, executed a deed of trust to secure that loan, and the deed was made to her as grantee. She made a down payment on the home of $500.00, part of which came from money appellant gave her, and part from money she earned.

During the war and until appellant's discharge from the Navy, Mrs. Etheridge received from appellant monthly allotments of money for the support of herself and her children, but she testified that these funds were not adequate, and that during her entire period of residence in Louisville she had a job supplementing these monthly allotments from appellant.

Shortly after appellant was released from the Navy in 1945, Mrs. Etheridge filed in the Chancery Court of Winston County a bill asking for a divorce from appellant on the ground of habitual drunkenness, for alimony and support of the children, and such other general relief as the court might find to be proper. In that suit, R. W. Etheridge, appellant, filed an answer denying those averments, and alleging that the home in Louisville had been paid for out of money which he sent his wife, and that the deed was made to her with the intent on her part to defraud him out of the property. By cross bill he charged his wife with habitual cruel and inhuman treatment and adultery, and also charged at some length that she had wrongfully ejected him from the home in 1943 when he was on leave, that she had 'requested him to pack up his suitcase and leave' the house, and that 'under the circumstances and conditions there was nothing for him to do except leave, which he did * * * the cross defendant ordered him to leave his home', and that in 1945 when he was discharged she had taken a similar attitude toward him, 'whereupon he left to obtain work at Columbus * * *.' The cross bill asked the court to declare that his wife held title to the property as trustee for appellant. It prayed for a divorce, custody of the children, and an adjudication that Mr. Etheridge was the owner of the property. These averments were denied in the wife's answer to that cross bill.

On September 27, 1945, the court granted the wife in this prior suit temporary alimony and attorney's fees. After a hearing on the merits, the chancery court, on April 4, 1946, made a final decree, in which it granted custody of the children to Mrs. Etheridge, but denied her a divorce because there was 'insufficient corroborative evidence.' The court dismissed the cross bill of Mr. Etheridge and denied all the relief sought by it. Appellant, in his brief, says that he asked his attorneys to withdraw his cross bill for divorce, but neither this record nor the final decree reflects any withdrawal. It adjudicated that 'the complainant and cross defendant is hereby awarded separate maintenance * * *' in the sum of $50.00 a month, payable by the husband to her. It adjudged that she was the owner of the home in question.

About six months thereafter, on October 23, 1946, Mrs. Etheridge, appellee in the present case, conveyed her home to the other appellees herein and defendants below, Earl J. Webb and wife, Mrs. Maude M. Webb. On or about November 13, 1946, R. W. Etheridge instituted the present action againt the three appellees, seeking to cancel the 1946 deed. Complainant charged that he was released from the Navy on May 1, 1945, that he returned to live in this home with his wife and children until it became necessary for him to seek work, and that he went to Columbus to take a job, and thereafter his wife refused to permit him to return and live in the house. He charged that he had been wrongfully ousted from the property, and that it was his homestead, and legally he was living on it at the time of the deed. Hence he prayed that the deed should be cancelled, and that the Webbs be required to give him possession of the property.

The Webbs in their answer averred that the decree in the previous suit, which we shall hereafter refer to as the separate maintenance decree, was res judicata as to the present action, and they also adopted the answer of Mrs. Etheridge, in which she denied any wrongful ouster of appellant. She pleaded that he had refused to live in the house, that his absence from the home was voluntary on his part, and that the separate maintenance decree was res judicata on the issues raised in the present bill.

On its original decree herein, the chancery court sustained the plea of res judicata, thereby precluding appellant from producing any evidence, on the issue of alleged wrongful ouster of him, as to events both before and after the separate maintenance decree. On appeal to this Court from that decree it was held that it was error to sustain that plea 'since the husband was entitled to prove, if he could, that the property, although belonging to the wife, still constituted the homestead, and that he was living with his wife at the time the conveyance thereof was executed'. This Court said that the chancellor had correctly adjudicated 'that the property belonged to the wife and that the title thereto should remain in her'. It pointed out that the deed was executed several months after the separate maintenance decree, and that therefore that decree could not have adjudicated that appellant 'was not living with th grantor as his wife at the time this deed was executed'. Hence the case was remanded for testimony and a decision on whether at the time of the deed appellant in fact was living with his wife, and therefore whether the deed was in violation of Code Sec. 332. Etheridge v. Webb, 1948, 204 Miss. 159, 37 So.2d 168, 169 That decision did not specifically pass upon the admissibility of evidence as to events occurring prior to the separate maintenance decree.

After this remand, both sides produced testimony on the issue for which the case was remanded. The appellant offered, and the chancery court excluded, considerable testimony which appellant tendered as tending to show a wrongful ouster of him by his wife from the home prior to the separate maintenance decree of April 4, 1946. The trial court held that such testimony was inadmissible because the separate maintenance decree was res judicata up to that time on the issue of who was at fault for the separation of appellant and his wife, and that the effect of that decree of April 4, 1946, was to adjudicate, among other things, that as of that time the appellant was the one responsible for and at fault in the separation from his wife. Appellant also presented testimony by himself and five other witnesses which tended to show that he had attempted a reconciliation with his wife after the separate maintenance decree, and that she had wrongfully refused to take him back. Mrs. Etheridge categorically denied any attempt at reconciliation by appellant after the decree of April 4, 1946. She testified that appellant made no claim to any homestead right in the property after that decree, and that appellant never thereafter expressed any intention to her to return and live with her, never attempted any reconciliation, and that in fact he 'ignored' her and the children.

The trial court in its opinion held that appellant had failed to show by a preponderance of the evidence that he actually or in legal effect was living with his wife at the time of the deed, and that the parties had not lived together after the decree. These findings were incorporated in the final decree for appellees, in which the court upheld the validity of the deed of October 23, 1946.

Shortly after the execution of that deed, Mrs. Etheridge moved with her children to Califronia and obtained a job in that state. She testified by deposition that it was necessary for her to move because she could not get a job in Louisville which paid her enough money to take care of herself and the children. The separate maintenance decree did not prohibit her from taking the children out of the state. On February 1, 1949, she obtained a divorce from appellant in Nevada, but that divorce is not an issue in this case.

Appellant assigns as error the chancery court's finding...