Holsomback v. Slaughter

• Decision Date: 04 January 1937
• Docket Number: 32448
• Citation: 171 So. 542,177 Miss. 553
• Court: Mississippi Supreme Court
• Parties: HOLSOMBACK v. SLAUGHTER

171 So. 542

177 Miss. 553

HOLSOMBACK v. SLAUGHTER

No. 32448

Supreme Court of Mississippi

January 4, 1937

Division B

Suggestion Of Error Overruled, February 1, 1937.

APPEAL from the chancery court of Lauderdale county HON. A. B. AMIS SR., Chancellor.

Suit by W. J. Slaughter against Pansy May Holsomback. Decree for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Reily & Parker and R. M. Bourdeaux, all of Meridian, for appellant.

The legal right of exemption, that is the legal right Or privilege of retaining a portion of one's property against the claims of creditors, is based upon our two code sections 1765 and 1766. In these statutes that property occupied by an owner as a home, when such owner is a householder and having a family, the right of retention and enjoyment is found. It is further provided by these statutes that an exemptionist will not become a non-exemptionist under certain conditions if such exemptionist is over the age of sixty years.

It is the home that forms the basis of this right, but just to be a home is not sufficient. A person must be over sixty years of age and a former exemptionist before the home is protected without more.

Our courts have from time to time stated the meaning of our exemption laws and construed the provisions involved in this case, so that these statutes now have a meaning more clearly defined and accurately stated than the wording of the statute. We think that the cases of Powers v. Sample, 72 Miss. 187, 16 So. 293; Cox v. Martin, 75 Miss. 229, 21 So. 611; and Hill v. Franklin, 54 So. 632, have made the application of the law, as applied to the facts in this case, clear and certain.

To constitute one or more persons, with another, living together in the same house, a family, it must appear that they are being supported by that other in whole or in part, and are dependent on him therefor, and, further, that he is under a natural or moral obligation to render such support.

Sheey v. Scott, 104 N.W. 1139, 4 L.R.A. (N.S.) 365; Calhoun v. Williams, 34 Am. Rep. 759.

The essential element of protecting the place of residence, being provided for dependents, and enjoyed as a necessity, and not as a gratuity, is found in all these cases, and denies the right of the appellee in this case.

Fox v. Waterloo Nat. Bank, 102 N.W. 424; Carter v. Adams, 4 S.W. 36; Holuback v. Wilson, 42 N.E. 169; Whitehead v. Nickelson, 48 Tex. 517.

In the case of Fant v. Gist, 15 S.E. 721, the court holds that to constitute a family under the exemption laws, there must be duty of support, either legal or moral, resting upon the owner of the property toward those residing with him.

Brokaw v. Ogle, 48 N.E. 394; Hill v. Franklin, 54 Miss. 632; Powers v. Sample, 16 So. 293; Cox v. Martin, 21 So. 611.

Under the holding of all our cases, as well as holdings of other courts, in order to be an exemptionist, there must be some duty of support, either legal or moral; and there must be dependents receiving support from the owner of the home.

The appellee grounds his case on the proposition that it was the legal and moral duty of Mrs. Slaughter, the deceased, to support "her family." This would unquestionably be true if Mrs. Slaughter had a family within the meaning and purpose of the statute. This appellant denies and submits that Mrs. Slaughter was neither legally or morally bound to support the able-bodied, adult sons, or either of them, and especially is this true when the record shows that these sons enjoyed a separate estate, the value of which is peculiarly within their knowledge and which was not disclosed to the court, but which it was admitted was unimpaired.

Sections 1765 and 1766, Code 1930, provide for the exemption when the owner is a householder and having a family--obviously meaning a family dependent upon the householder for its support. No such condition is shown by this record. It is respectfully submitted that an examination of the authorities discloses that all of the courts seem to hold that those living in the home must be dependents--must be persons who are dependent, in some measure, on the head of the family for support. All of the authorities which I have been able to find use the word "dependents," "dependency," or some word of like meaning.

29 C. J. 795, par. 37; Fant v. Gist, 15 S.E. 721; Hill v. Franklin, 54 Miss. 632.

There, was no burden of supporting the family in this case, and note the language of the court, "the exemption depending upon the burden." What the mother was doing in this case was purely a gratuity. There was no dependency, there was no necessity, there was no burden.

Powers v. Sample, 16 So. 293.

J. C. Floyd, of Meridian, for appellee.

It has been the public policy of the state of Mississippi, as expressed by this court in numerous cases, "that exemption statutes shall be liberally construed in favor of the exemptionist."

Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630; Gilmore v. Brown, 93 Miss. 63, 46 So. 840; U. S. F. & G. Co. v. Holt, 148 Miss. 855, 114 So. 818; Breland v. Parker, 150 Miss. 476, 116 So. 879; Abernathy v. Savage, 159 Miss. 506, 132 So. 553; Adams v. Strong, 171 Miss. 510, 158 So. 204.

Appellant's contention, as we. understand it, that this court should restrict the word "family" to include only persons which the householder is legally or morally bound to support. We do not concede that this limited construction should be given the statute, but even if it should, we believe that this case should still be affirmed, because it appears from the record that it was the legal and moral duty of Mrs. Mackie Slaughter, the debased herein, and the exemptionist, as the appellee contends, to support her family. The record shows beyond dispute that the daughter was insane and incapable of earning a living; that the eldest son, Albert, for some reason did not earn a living, and it is the public policy of this state, as expressed by section 5706 of the Mississippi Code of 1930, to require the father or mother, or brother or sister to support any persons unable to support themselves.

We have never before heard the contention made that when a child reaches his majority or reaches the age where he or she is able to support himself that they thereby cease to be a member of the family to which they have theretofore belonged.

25 C. J. 664; 29 C. J. 795, par. 37.

It appears that the record here certainly discloses a condition of dependency on the part of the insane daughter and on the part of the improvident son, and it is certainly natural, we think, for the mother to be willing to assume the obligation of support as she did here, and the record is without dispute that she aid actually support the members of her family.

Pearson v. Miller, 71 Miss. 379, 14 So. 731; Moore v. Sykes, 149 So. 789.

It appears that the courts from other states with statutes similar to ours have had occasion to pass more directly upon the point presented by this appeal than has our own court. See: Kochler v. Gray, 172 P. 25; Walford v. Deemer, 89 Ill. 524; Brooks v. Collins, 74 Ky. 622.

We respectfully submit that the court should not ingraft exceptions upon the exemption statute as it is written, should not restrict the meaning of the term "family" beyond its so well defined and well understood meaning, and the meaning which the Legislature no doubt had in mind when enacting this statute, and should, in the event it should be necessary, which we submit it is not, liberally construe the exemption statutes in favor of the exemptionist according to the well defined public policy of the state of Mississippi.

Argued orally by R. M. Bourdeaux, for appellant.

OPINION

Ethridge, P. J.

Mrs. Mackie Slaughter, who, in her lifetime, owned certain property in Meridian, Miss., lived on a certain piece of property upon which a deed of trust, which had been executed, was foreclosed, and the mortgagee bought same at the foreclosure sale. Thereupon, she moved into the house involved in this controversy and filed a homestead declaration thereto. She lived in this house with her two sons, both above the age of twenty-one years, one of whom was at college. She also had an adult daughter who was mentally afflicted and in the insane hospital, but supported there by her mother, who also reserved a room in her house for said daughter.

On December 17, 1932, a judgment was rendered against her in favor of the appellant, and during the month of April, 1934 Mrs. Mackie Slaughter moved into the house in controversy, filing the homestead declaration on May 25, 1934, and died a few days later. After her death, execution was levied upon the homestead property. Prior to her death, and while she was living in the house in controversy, she executed a deed thereto to her...