Gardner v. Cook

• Decision Date: 10 December 1934
• Docket Number: 31480
• Citation: 173 Miss. 244,158 So. 150
• Court: Mississippi Supreme Court
• Parties: GARDNER v. COOK

158 So. 150

173 Miss. 244

GARDNER v. COOK

No. 31480

Supreme Court of Mississippi

December 10, 1934

Division A

Suggestion Of Error Overruled August 31, 1935.

APPEAL from the circuit court of Washington county HON. S. P. DAVIS Judge.

Action by H. K. Gardner against Susan Gray Gant Cook. Judgment for defendant, and plaintiff appeals.

Affirmed.

D. H. Waits, of Leland, for appellant.

The primary point in this case is this: whether or not the husband of appellee was "living with his wife" at the time of the execution of the trust deed, and this point involves a construction of section 1780, Code of 1930.

In the construction of these statutes, whether they shall be liberally or rigidly interpreted, is not precisely the distinction demanded. They should be sensibly construed.

Gibson v. Jenning, 15 Mass. 205; Campbell v. Adair, 45 Miss. 170.

The exemption laws are founded in the beneficent policy of securing families against poverty and want, and protecting them against the misfortunes, the extravagances and follies of their heads.

Thoms v. Thoms et al., 45 Miss. 263.

In the record of the case at bar there is nothing to indicate that the husband of appellee has any intention of returning to her home, nor any prospect of contributing to her support. But ceasing to reside on a homestead is rather a matter of fact than of intent.

Thompson v. Tillotson, 56 Miss. 36; Majors v. Majors, 58, Miss. 806; Moore v. Bradford, 70 Miss. 70; Scott et al. v. Scotty, 73 Miss. 575; Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 666.

To construe the statute as the court below did is not only unreasonable but is unjust to the wife.

The action being one of unlawful entry and detainer only the question of possession is involved and neither the legal title to the property nor any secret equities existing between the parties can be considered.

Clark v. Bourgeois, 86 Miss. 1.

Appellee is estopped by her own actions from claiming the benefits of section 1780, Code of 1930.

The benefits of the statute must be affirmatively asserted, which has not been done by the husband of appellee.

Scott et al. v. Scott, 73 Miss. 575.

Douglas E. Beams, of Greenville, and Louis C. Hallam, of Jackson, for appellee.

Where the husband owns the homestead the wife must join in any instrument seeking to convey or incumber it.

Section 1778, Code of 1930.

Both the appellee and her husband, Jesse Cook, were over sixty years of age, and, therefore, the last paragraph of section 1766, Code of 1930, is pertinent here.

The conditions existing at the very time of the execution of the instrument determine its validity.

Cummings v. Busby, 62 Miss. 195; Hubbard v. Sage Land & Improvement Co., 81 Miss. 616; Gulf, etc., R. R. Co. v. Singleterry, 78 Miss. 777, 29 So. 754.

Homestead statutes are to be "sensibly" construed.

Gibson v. Jennings, 15 Mass. 205; Campbell v. Adair, 45 Miss. 170-182; Bank v. O'Neal, 86 Miss. 45, 38 So. 630; Gilmore v. Brown, 93 Miss. 63, 46 So. 40; Levis-Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435, 666.

The deed of trust in this case was void.

Bolen v. Lily, 85 Miss. 344, 37 So. 811, 107 Am. St. Rep. 291; Hubbard v. Sage, 81 Miss. 616; Moseley v. Larson, 86 Miss. 288, 38 So. 234; Levis-Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435-666; Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 48 So. 516; Breland v. Parker, 150 Miss. 476, 116 So. 879; Smith v. Stanley, 159 Miss. 720, 132 So. 452; Federal Land Bank v. Miles, 152 So. 472.

There is no evidence in the record that Jesse Cook intended "totally to relinquish and abandon his right," to say nothing of "clear and decisive proof of that intention," and without such evidence an abandonment cannot be declared.

Campbell v. Adair, 45 Miss. 170-182; Thompson v. Tillotson, 56 Miss. 36; Ross v. Porter, 72 Miss. 361, 16 So. 906; Majors v. Majors, 58 Miss. 806; Moore v. Bradford, 70 Miss. 70, 11 So. 63; Jackson v. Coleman, 115 Miss. 535, 544.

Husband and wife are living together within the meaning of the statute, though oceans separate them, unless there has been a desertion or abandonment of one by the other "with intention never to return."

Walton v. Walton, 76 Miss. 662, 666, 25 So. 166; Levis-Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435; Scott v. Scott, 73 Miss. 575, 19 So. 589; Board of Mayor, etc., of Booneville v. Clayton, 155 Miss. 428, 435, 124 So. 490.

As to the homestead, the wife (or the husband) has more than a veto power. If the title be in the husband, the wife "has some kind of an interest in, though no title to, the land."

Columbian Mutual Life Ins. Co. v. Jones, 160 Miss. 41, 52, 133 So. 149; McDonald v. Sandford, 88 Miss. 633, 41 So. 369, 117 Am. St. Rep. 758, 9 Ann. Cas. 1; Young v. Ashley, 123 Miss. 693, 86 So. 458.

Under the law, a person purchasing an exempt homestead is affected with notice of the exemption and with the knowledge of the law that it is necessary to a valid conveyance of a homestead that both husband and wife join in such conveyance.

Breland v. Parker, 150 Miss. 476, 486, 116 So. 879.

If the legal title to this property was not involved in this action, then it is clear that the appellant has no standing before this court.

Williams v. Simpson, 70 Miss. 113, 11 So. 689; Murf v. Maupin, 113 Miss. 670, 678, 74 So. 614.

The appellant never having had possession, and never having been deprived of possession, was not entitled to possession.

Taylor v. Orlansky, 92 Miss. 761, 46 So. 136; Robinson v. Boggan, 97 Miss. 27, 52 So. 705.

The appellee was not estopped to claim the invalidity of the deed of trust executed by her in which her husband did not join.

Home & Loan Assn. v. Leonard, 77 Miss. 39, 29 So. 351; Scottish-American Mtg. Co. v. Bunckley, 88 Miss. 641, 650; Canan-Commercial Trust & Savings Bank v. Brewer, 143 Miss. 146, 181, 108 So. 424; Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 251, 48 So. 516; Breland v. Parker, 150 Miss. 476, 484, 116 So. 879; Davis v. Butler, 128 Miss. 847, 91 So. 279; Day v. McCandless, 167 Miss. 832, 840, 142 So. 486; Federal Land Bank v. Miles, 152 So. 472.

The act of the husband cannot destroy the right of the wife and children to the homestead exemption, nor can the assertion of this right be estopped by the act of the husband.

Hammond State Bank & Trust Co. v. Broderick, 154 So. 739, 741; Law v. Butler, 44 Minn. 482, 47 N.W. 53, 9 L.R.A. 856, 858; Van Doren v. Wideman, 68 Neb. 243, 94 N.Y. 124, 110 Am. St. Rep. 419, 429.

Argued orally by D. H. Waits, for appellant, and by Louis C. Hallam, for appellee.

OPINION

McGowen, J.

This was an action of unlawful entry and detainer filed in the county court of Washington county by the appellant, Gardner, a white man, against the appellee, Susan Gray Gant Cook, a negro woman sixty-eight years of age, alleging that she unlawfully withheld from him the possession of a small twenty-acre farm.

The appellee appeared and filed a general issue plea. On the trial of the issue, the county court entered a judgment in favor of the appellant, Gardner, adjudging that he was entitled to the possession of the land in controversy. Appellee appealed to the circuit court, which reversed the judgment of the county court, and entered a judgment in favor of the appellee, with costs. An appeal is prosecuted here from that judgment.

This is a proceeding under sections 3456 and 3458, Code 1930, except that exclusive jurisdiction is now vested in the county court. See section 693, Code 1930.

Gardner's claim of possession was based on a trustee's deed made to him by the trustee named in a deed of trust executed by Susan Gray Gant Cook in favor of Gardner, default having been made therein, foreclosure had, and Gardner being the purchaser at the sale.

The appellee contended that the deed of trust and the trustee's deed were void under section 1780, Code 1930, because she was married and her husband had not signed and acknowledged the deed of trust.

The narrow question presented was whether or not, within the purview of the said statute, the husband was living with the wife.

It appears from the evidence that the appellee was married to Cook on May 1, 1930, and that they lived together immediately thereafter on the land in controversy as a homestead. The wife, Susan, had lived there since the year 1921, and since the death of her former husband, Gant. In 1931, at the time when she and her husband, Cook, were living together on this land, she, without the husband joining therein, executed a deed of trust in favor of Gardner for a pre-existing debt, and to secure advances to be made during the year. On March 2, 1932, Gardner required Susan to execute a deed of trust which she signed as Susan Gray Gant, and in the body of this deed of trust, which had been prepared by Gardner, she was described as Susan Gray Gant. A few days later, he prepared another deed of trust correcting, in some measure, the description, and describing her as Susan Gray Gant Cook, which she signed, acknowledged, and delivered to him. It was promptly recorded, and this last deed of trust was foreclosed.

Prior to the beginning of this suit in February, 1934, Gardner knew of the marriage and knew of their occupancy of the land as a homestead, but did not know that it was necessary for the husband to join in the deed of trust.

Gardner testified that, after the execution of the first deed of trust in 1931, Susan told him that her husband had left the place and would not return; that she could not take additional land because her husband was of no account to her. He further testified that he had not seen the husband about the premises since May, 1931, although he was frequently in that community.

At the time of the signing of the deed of trust in controversy, no...