Hughes v. Hahn

• Decision Date: 22 May 1950
• Docket Number: No. 37511,37511
• Citation: 46 So.2d 587,209 Miss. 293
• Parties: HUGHES et al. v. HAHN et al.
• Court: Mississippi Supreme Court

Page 587

46 So.2d 587

209 Miss. 293

HUGHES et al. v. HAHN et al.

No. 37511.

Supreme Court of Mississippi, in Banc.

May 22, 1950.

Stone & Stone, Coffeeville, for appellants.

Jno. S. Throop, Jr., Water Valley, for appellees.

McGEHEE, Chief Justice.

On the 24th day of October, 1942, and long prior thereto, one John Brassel owned a tract of approximately 200 acres of farm land in Yalobusha County, whereon he resided with his wife as a homestead. However, it does not appear that he had ever selected any particular 160 acres thereof as his homestead or made a declaration in regard thereto.

On the date aforesaid he executed and delivered to his daughter, the appellee Mrs. Georgia Lillian A. Hahn, of the State of Colorado, for a consideration of one dollar and natural love and affection, a warranty deed to all of the said land. The grantee recorded her deed, and paid the taxes on the land from year to year, but did not otherwise take possession of the land or use the same, and the dwelling house was torn down and removed therefrom without her knowledge or consent, she having remained in Colorado. The wife of the grantor did not join in the execution of this deed of conveyance until October 4, 1948, after the grantor John Brassel had died on April 1, 1948. She then signed the original deed underneath the signature of John Brassel, her deceased husband, and thereupon caused to be appended thereto a separate acknowledgment which was taken before a different officer than the one before whom it had been formerly signed and acknowledged by the husband. This was subsequent to the filing of this suit on August 31, 1948.

At the time of the execution of the deed from John Brassel in favor of his daughter, who is now Mrs. Hahn, the said grantor had five other children by a former marriage, including the appellants Mrs. Mary Brassel Hughes and Walter Brassel, and all of whom were adults and still living at the time of the death of their father John Brassel on April 1, 1948. The bill of complaint herein was filed by the appellants, asking for a partition of the entire tract of land by a sale thereof and a division of the proceeds therefrom, it being alleged that the land was not susceptible of an equitable partition in kind. The wife of the grantor John Brassel, and all the children, other than complainants, were made defendants to the suit.

After the filing of this suit all of the co-defendants of the appellee Mrs. Hahn conveyed to her by quitclaim deed whatever interests they had in the land as heirs at law of John Brassel, deceased. All of these quitclaim deeds were made exhibits to the answer of the defendants, together with the deed executed by John Brassel on October 24, 1942, which was signed and acknowledged by his wife on October 4, 1948, as aforesaid.

This suit for partition is predicated on the following contentions, to-wit: That the deed executed by John Brassel in favor of his daughter at a time when he and his wife were living on the land as a homestead, and without her signature thereto, was void; that, therefore, the grantor therein still owned the land on April 1, 1948, when he died; that thereupon the complainants and the defendants became tenants in common of said land; and that the rights of the complainants having intervened prior to the signing and acknowledgment of the deed by the wife on October 4, 1948, after the husband's death and after the filing of this suit, her execution of the conveyance did not relate back to its original execution by the husband, but amounted to nothing.

Of course, the deed from John Brassel to his daughter in 1942 would be good in any event as to the portion of the land in excess of 160 acres which may have constituted his homestead. But as to whether or not it would be good as to this remaining 160 acres without the signature of his wife depends entirely on whether the decision in the case of Wilson v. Gray, 59 Miss. 525, is controlling under the facts of the instant case. For this reason, and because of the importance of the legal question presented, we have set forth in this opinion all of the foregoing facts, and we now mention the further circumstances that the trial court found on sufficient evidence that at the time John Brassel executed the deed in favor of his daughter on October 24, 1942, he and his wife had then already determined to move away from the land and go into Montgomery County, where within two weeks thereafter they did go to live with some of her relatives, due to the fact that the husband was then an invalid and they did not care to remain alone on the homestead in Yalobusha County, after the youngest son had been called into the military services shortly before the execution of the said deed by the husband.

And it also appears from the evidence that the wife was willing to join her husband in the execution of the deed to her said stepdaughter, and that her failure to do so was due to the fact that she was sick and unable to go to the town of Coffeevill where the deed was executed and acknowledged by him.

In the case of Wilson v. Gray, supra, it was held that an exemptionist who sells his homestead, in order to make a change of residence, and which he afterwards effects, can before removal execute a valid conveyance of the property without his wife joining in the manner prescribed by the statute. The deed in that case was executed by the husband on January 2, 1878. The wife joined the husband in the signing of the deed, but her acknowledgment thereto was defective in that it did not comply with Section 2315, Code 1871. Moreover, the grantees A. H. and J. A. Wilson paid a consideration of $2,500 in that case for the homestead, and the husband and wife thereupon did actually acquire another homestead in Texas, pursuant to their original purpose, and used the consideration received by the husband from the Wilsons to pay the purchase price thereof. The Court held: 'The sale of the homestead having been made, in execution of the purpose to abandon it to acquire another residence, and this purpose having been consummated, it was not material that the conveyance, which was one of the steps in the change of residence actually...