Fitzgerald v. Rees

• Decision Date: 17 February 1890
• Citation: 7 So. 341,67 Miss. 473
• Court: Mississippi Supreme Court
• Parties: W. H. FITZGERALD ET AL. v. M. C. REES

7 So. 341

67 Miss. 473

W. H. FITZGERALD ET AL. v. M. C. REES

Supreme Court of Mississippi

February 17, 1890

FROM the circuit court of the first district of Yalobusha county HON. WM. M. ROGERS, Judge.

The facts are sufficiently stated in the opinion.

Affirmed.

George H. Lester, for appellants.

The rights of the parties in this case must be determined by the construction given to §§ 1248-49 of the code of 1880. Can the head of a family living in an incorporated town, and owning adjoining land outside of town, extend his homestead so as to embrace both tracts, that in town and that without, the two together not exceeding 160 acres, nor in value $2000? In other words, can the exemptionist take under both of the above sections of the code, or must he take under the one or the other, as he may happen to live in town or in the country?

These sections must be so construed as to give effect to both, and the first thing that arrests attention is the marked difference in their phraseology. The first provides for every citizen of the state who is a householder and has a family at home, to consist of not more than 160 acres of land, worth not more than $2000; the other exempts to every person who is a householder and has a family, and who resides in any city town, or village, the land and building owned and occupied as a residence by such person [clearly meaning the land and building in the city, town or village], as contradistinguished from other lands of such persons lying outside of the corporate limits.

The first imposes two limitations: [1] it must not exceed in quantity 160 acres; and [2] it must not exceed $2000 in value, while the second limits the value to $2000, but imposes no limitations as to the quantity or number of acres except that it must be the land and building occupied as a residence.

A comparison and careful analysis of the two sections lead to the conclusion that in their adoption the legislature intended to provide and did make provision for two classes: [1] for the farmer population who live in the country and till the soil, and [2] for those who live in towns and support themselves and families by other occupations and pursuits than farming. To the latter class is given, in addition to the homestead, the right to elect what personal property shall be exempt to them. The rural homesteader must take such personal property as is given him by § 1244, but his more fastidious neighbor in town may, if he so elects, take a barrel of whiskey. Bernheim v. Andrews, 65 Miss. 28.

A person cannot blend the two sections and take under both. See Baldwin v. Tillery, 62 Miss. 380.

Otherwise, why did the legislature take the time and trouble to enact § 1249? The answer is that the homestead secured by § 1248 was not suited to the conditions of families in towns, the character of the homestead being distinct. Thompson on Homesteads and Exemptions, § 160.

I submit the two statutes should be construed so as to give effect to every provision.

R. H. Golladay, for appellee.

If the homestead claim is within both limitations, that is as to value and as to the number of acres, it matters nothing that the property is wholly within or wholly without, or partly within and partly without the corporate limits of a town. If the tract consists of 160 acres, and lies within the corporate limits, and together with improvements does not exceed $2000 in value, it is exempt. If the corporate limits be changed and a part of 160 acres thereby put outside such limits, is such part subjected to debt? Is a homestead exemption subject to such capricious changes? Can the right depend upon such fortuitous facts? We know of towns whose corporate limits have been several times changed. Surely the homestead rights do not fluctuate with the corporate limits. The larger part of appellee's land, on which he is dwelling, is out of the corporation, his occupation is the cultivation of the land on which is his home; the whole does not exceed $2000 in value, nor 160 acres in quantity, and is a solid body.

Nothing in the law imposes the condition that the land must be wholly within or wholly without the corporate limits, where all the conditions exist.

OPINION

COOPER, J.

Appellant a judgment creditor of appellee, caused an execution on his judgment to be levied upon certain lands of appellee, and at the execution sale he became the purchaser. This is an action of ejectment to recover the land so sold. The appellee defended upon the ground that the land in controversy was a part of his homestead and exempt from sale under execution. The single question presented is whether the land was a part of the homestead. The facts are not controverted, and the question is purely one of law. The residence of appellee, is located within the corporate limits of the town of Oakland. The land on which it is situated is less in quantity than one hundred and sixty acres, and less in value than two thousand dollars. Appellee devotes his land to agriculture, and the whole comprises one place. While the residence is within the corporate limits of the town, all of the land except fifteen or twenty acres is without such limits. The question then is, whether the homestead exempt by law may be one located...