Gilmore v. Brown

• Decision Date: 29 June 1908
• Docket Number: 13,021
• Citation: 46 So. 840,93 Miss. 63
• Court: Mississippi Supreme Court
• Parties: DORA GILMORE v. SARAH E. BROWN ET AL

46 So. 840

93 Miss. 63

DORA GILMORE v. SARAH E. BROWN ET AL

No. 13,021

Supreme Court of Mississippi

June 29, 1908

FROM the chancery court of Lafayette county, HON. ISAAC T. BLOUNT Chancellor.

Mrs Gilmore, appellant, was complainant in the court below; Mrs Brown and others, appellees, were defendants there. From a decree in defendants' favor the complainant appealed to the supreme court.

The facts are stated in the opinion of the court.

Affirmed.

Mayes & Longstreet and Kimbrough & Thomison, for appellant.

Ceasing to reside on homestead renders it liable, unless the removal be temporary, by reason of some casualty or necessity and with the purpose of speedily re-occupying it. Code 1906, § 2157.

"Necessity and Casualty" defined. Thompson v. Tillotson, 56 Miss. 36. The length of time of debtor's absence rebuts the idea of animus revertendi and shows an abandonment of the homestead. 2 Parsons on Contracts, 580.

Removal to Lafayette Springs and voting in the municipal elections negative an intention speedily to return as required by Code 1906, § 2157; 2 Parsons on Contracts, 579 and note 2; Hairston v. Hairston, 27 Miss. 704; Alston v. Newcomer, 42 Miss. 186.

The intent to re-occupy can have no influence on the question of the existence of the casualty or necessity constituting cause or removal. Both the intent to speedily re-occupy and cause of removal must exist to protect the homestead. If there is no sufficient cause of removal, proof of intent to re-occupy is immaterial. Moore v. Bradford, 70 Miss. 74, 11 South., 630.

The acquisition of the homestead in Lafayette Springs was conclusive evidence of the abandonment of the one in the country. Thompson on Homesteads, § 279.

It is clear that when Broom acquired the village home he lost the one in the country, and he had not re-acquired it at the time of his death. Ross v. Porter, 72 Miss. 361, 16 South., 906.

The widow has abandoned the lot in Lafayette Springs, occupied as a homestead at the time of the death of Brown, it is therefore subject to partition, she "no longer occupies and uses it." Code 1900, § 1659.

It is admitted by the pleadings that the lot in Lafayette Springs is subject to sale.

The home as it existed in the lifetime of the husband is preserved to the widow. Moody v. Moody, 86 Miss. 329, 38 South., 322.

The widow is not entitled to the one hundred and sixty acre tract as a homestead exemption, there was an abandonment of this by the husband who owned the land and who, as the head of the family, was entitled to select the domicile. The removal of this was not "temporary and by reason of some casualty or necessity" within the protection of the statute. Salter v. Embrey, 18 South, 373.

Falkner & Russell, for appellees

There was never any intention on the part of deceased to abandon the homestead that he undisputably held when he first came to Lafayette County. His absence from the same was only temporary with the intent to speedily return and occupy. He moved to a small village only one mile away for the avowed purpose of educating his children--the roads from his homestead to the village were very muddy and disagreeable in winter and hence made it the more difficult for his children to get to school. This removal is allowed under the term "necessity" as defined in Thompson v. Tillotson, 56 Miss. 36. Brown stated repeatedly, and it was well understood by all his family, that his removal to the village was only temporary for the above mentioned purpose, and that he expected to return as soon as this was accomplished, and he continued, after his removal to the village, to cultivate the lands on his rural homestead; his children also continued to assist him in the cultivation of this farm, as they had done before leaving the same. This continued each year while living in the village. No one ever lived on the rural homestead during their absence in the village except some member of his own family. The entire farm was either cultivated by him in person or under his exclusive management and control, and, that not by strangers, but by members of his own family. Ross v. Porter, 72 Miss. 365, 16 South., 906; Moore v. Bradford, 70 Miss. 74; 11 South., 630; King v. Sturges, 56 Miss. 606; Culp v. Agee, 79 Miss. 503, 31 South, 1; Campbell v. Adair, 45 Miss. 170.

It was a question of fact, pure and simple, and the chancery court resolved the same in favor of appellees and the finding is final.

A verdict will not be disturbed unless it is manifest from the whole record that it is dearly wrong unless misdirection or other apparent error might have produced it. McCallum v. Puryear, 48 Miss. 420.

OPINION

CALHOON, J.

This is a controversy as to whether the piece of land claimed as a homestead was or was not a homestead. If it was not, then undoubtedly it was liable in this proceeding to be partited among the heirs of W. B. Brown. Mrs. Gilmore was one of these heirs. She files a bill for partition, and avers that the homestead was in the village of Lafayette Springs, and occupied as such by W. B. Brown when he died. She avers this village property was abandoned by the widow, one of the appellees, Mrs. Sarah E. Brown. Complainant prays alternatively that, if it be held that the widow is entitled to hold this village property, then the decree will order partition of the country property, of which it is averred the widow is in possession. The learned chancellor below, on the facts, found that the one hundred and sixty acres of the country tract as the real homestead had never been abandoned as such...