Federal Land Bank of New Orleans v. Miles

• Decision Date: 22 January 1934
• Docket Number: 31003
• Citation: 152 So. 472,169 Miss. 43
• Court: Mississippi Supreme Court
• Parties: FEDERAL LAND BANK OF NEW ORLEANS v. MILES et al

152 So. 472

169 Miss. 43

FEDERAL LAND BANK OF NEW ORLEANS v. MILES et al

No. 31003

Supreme Court of Mississippi

January 22, 1934

Division B

1 HOMESTEAD.

Deed or deed of trust, to be valid as to homestead, must be signed by wife as well as by husband.

2 HOMESTEAD.

Deed of trust securing loan, and executed by husband only, held not subject to be reformed so as to embrace land constituting homestead, notwithstanding representation by husband that buildings were upon land embraced in trust deed.

3. SUBROGATION.

Where proceeds of loan secured by trust deed were used, in part, to pay lien of county for general improvements, but such property was not embraced within deed of trust securing loan, mortgagee held subrogated to rights of county to extent of proceeds of loan used to pay county's lien.

HON. D. M. RUSSELL, Chancellor.

APPEAL from chancery court of Stone county, HON. D. M. RUSSELL, Chancellor.

Suit by the Federal Land Bank of New Orleans against T. L. Miles and another. From a decree dismissing the bill, the plaintiff appeals. Reversed, and cause remanded for further proceedings in accordance with opinion.

Reversed and remanded.

U. B. Parker, of Wiggins, for appellant.

The equitable remedy of reformation of written instruments or the equity to reform a written instrument is the remedy afforded by courts of equity to the parties and the privies of parties to written instruments which import a legal obligation, to reform or rectify such instruments whenever they fail, through mistake or fraud or a combination of both fraud and mistake, to express the real agreement or intention of the parties.

23 R. C. L. 308, 313, 320, 321, 322, 328 and 331.

The appellant was and is subrogated to the lien held and the position occupied by Stone county.

Appellant would now be entitled to have the deed of trust executed by defendants to Stone county reformed and corrected so as to include this land and the dwelling houses and improvements thereon, and on account of the fact that error was made, this court will hold that they, the defendants, have, by their deed of trust to the appellant, renewed their indebtedness to Stone county so as to stretch out the payments and prevent the running of the statute of limitations, and appellant is entitled to all necessary and proper decrees and orders to enforce its rights in the premises.

Prestridge restridge v. Lazar, 132 Miss. 168, 95 So. 837; Robinson v. Sullivan, 102 Miss. 581, 59 So. 846; McIntyre v. Agriculture Bank, Freem. Ch. 105; Ligon v. Barton, 88 Miss. 135, 40 So. 555; Grenada Bank et al. v. Young, 139 Miss. 448, 104 So. 166; Love, Superintendent of Banks, v. Robinson et al., 161 Miss. 585, 137 So. 499; Adams v. Taylor, 149 Miss. 750, 115 So. 878; Lundy v. Hazlett, 147 Miss. 808, 112 So. 595; D. S. Pate Lumber Co. v. Weathers, 146 So. 433.

Buren Broadus, of Wiggins, for appellees.

Appellant now argues mutual mistake as its ground for relief. Mrs. Miles testified that she signed this deed of trust only after it was explained to her that it did not contain or include the twenty acres upon which their dwelling house was located.

Contemporaneous assent of husband and wife, if living together, is essential to an encumbrance of exempt homestead.

Duncan v. Moore, 67 Miss. 136; Hubbard v. Improvement Company, 81 Miss. 618.

Even mistaken or false statements made by the husband does not render his deed or encumbrance on homestead without wife's joinder valid.

Foote v. Hawbrick, 70 Miss. 157, 12 So. 336.

All contracts seeking to acquire right to homestead are void as contracts when not signed by the wife.

Hinds v. Morgan, 75 Miss. 509, 23 So. 35; Young v. Ashley et ux., 123 Miss. 693.

In order that a lender of money may be entitled to be subrogated to the lien of a mortgage that has been cancelled, the money borrowed must have been used in paying the debts secured by the mortgage and under an express or implied agreement that he shall be subrogated to the rights of mortgagee.

Howell v. Bush, 54 Miss. 437; Bank of Philadelphia v. Posey, 130 Miss. 531.

Argued orally by U. B. Parker, for appellant.

OPINION

Ethridge, P. J.

The appellee T. L. Miles filed an application with the Federal Land Bank of New Orleans for a loan of eight hundred dollars to be secured by a deed of trust on two hundred acres of land in Stone county owned by T. L. Miles, specifically described in the application. The purpose for which the loan was procured, as set forth in the application, was to purchase wire fencing, three hundred fifty dollars; for clearing land, one hundred ten dollars; to pay existing debt to Stone county for general improvements, three hundred dollars; to pay for stock in National Farm Loan Association, forty dollars--making a total of eight hundred dollars. T. L. Miles represented in the application that the value of permanent improvements on the land was made up as follows: Main dwelling, frame, five hundred dollars; other dwelling, frame, two hundred dollars; main barn, frame, three hundred dollars; other barn, frame, two hundred dollars; cultivated land forty dollars per acre, fourteen acres, five hundred sixty dollars; cultivable land, twenty dollars per acre, ninety acres, one thousand eight hundred dollars; and ninety-six acres of pasture land at ten dollars per acre, three hundred twenty dollars. It was also represented in the application that the principal business of T. L. Miles was farming, and that he actually resided on the lands described with his family, consisting of his wife and two children.

The loan was approved by the loan committee of the Royal National Farm Association, of which T. L. Miles, as a condition of obtaining a loan, became a member. The Federal Land Bank had the property appraised by its appraiser, and the abstract of title to the land was approved by its attorneys. The Federal Land Bank, as a condition for the loan, required Miles to secure insurance upon the buildings described in the application in the sum of five hundred dollars, which Miles,...