Jackson v. Coleman

• Decision Date: 15 October 1917
• Docket Number: 19572
• Citation: 115 Miss. 535,76 So. 545
• Court: Mississippi Supreme Court
• Parties: JACKSON v. COLEMAN et al

76 So. 545

115 Miss. 535

JACKSON v. COLEMAN et al

No. 19572

Supreme Court of Mississippi

October 15, 1917

Division B

APPEAL from the chancery court of Coahoma county, HON. IVE MAY Chancellor.

Suit by Lindsey Jackson against Emmett Coleman and others. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause remanded.

D. A Scott and E. M. Yerger, for appellant.

The appellees base their case on the following propositions: 1. That the trial court has rendered a decision on a question of fact, and that such a decision will not be reversed; 2. That upon the divorce of Lindsey Jackson and Alice Jackson Lindsey had no further rights of a homestead exemption; 3. That the amount paid for the land was entirely sufficient in law; 4. That the decree of the chancellor in the case of Alice Jackson v. Lindsey Jackson, in which a divorce was granted to the former, and alimony allowed her, was, in effect, a lien upon the land, sold under execution, belonging to Lindsey Jackson, even though said land may have been, at the time of said sale, the homestead of the appellant.

Taking up the first proposition, we find that the rule of law, in this state as found in section 172, R. C. L. Vol. 2, under the head "appeal and error" is as follows:

"Under the present practice in equity, while the evidence is heard by the court viva voce, still the findings of the trial court are open for review, and while it is the general practice to defer in large measure to its decision on a question of fact, on account of its superior advantage in weighing the evidence, the reviewing court retains the right, unless otherwise provided by statute to weigh the evidence and draw its own conclusion." 2 R. C. L., page 204, section 172, and numerous authorities cited in footnote 17; Baker v. Cochran, 2 Miss. 26.

We insist, that in the instant case, the decree is manifestly wrong, that the decision is so clearly against the great weight and preponderance of the evidence that this court in its great wisdom, and love of justice cannot and will not permit the decision, handed down by the lower court to stand. Maxwell v. Harkleroad et al., 77 Miss. 456; Garland, Executor, v. Rowan., Q. S. & M. 630; 2 R. C. L., section 187, and 188, pp. 225-226; Ellison v. Ga. R. B. Co., 87 Ga. 691; 4 C. J., pp. 1099, 3078.

As to the proposition that Jackson did not intend to speedily re-occupy it, the only evidence in the record, which bears out appellee's theory, is a statement which counsel for appellees, elicited for Jackson, after a very long, tedious and arduous examination, after the old man had been worried to such an extent that he hardly knew what he was doing or saying. He testified time and time again as to the efforts which he had made to lease the land for one, two, or three years, and as to the fact that finally he did lease the land for five years, when he found that he could not rent it for one, two, or three years.

As a matter of the second proposition, we submit that counsel does not cite one single authority, which would substantiate his idea. The law is settled, and we find it stated, in 13 R. C. L., page 557, coming under the head of Homestead, as follows: "Primarily, the husband, and not the wife, is the head of the family, and any man who has a wife is considered the head of a family within the meaning of homestead or exemption statutes, although he has no children. And it makes no difference that his wife may have deserted him and may be residing in another state, and that he may be living in improper relations with another woman."

As to the proposition, that the decree for alimony, in the divorce proceeding, after being enrolled, became a lien on the homestead of old man Lindsey Jackson, we find that the law is otherwise. 1 R. C. L. section 91, page 945, 21 Cyc. 521.

We will take up briefly one or two of the cases cited by counsel for appellees, on this proposition. The first is that of Mosley v. Larson, 86 Miss. 288, which explains the law in Mississippi. Adverse counsel has favored us with a long quotation from Justice Cox's opinion. We will quote from his brief only a part of this quotation, and give you our idea as to what is meant by it.

"We further hold that upon the facts averred, appellee is entitled to suit money and to alimony pendente lite and permanent and that the sums allowed for these purposes may be made a lien upon the homestead superior to any claim of appellants for reimbursement, etc."

We know that this is the law; that the court, having jurisdiction of the parties may decree the alimony to be a specific lien upon the land superior to the right of the homestead exemption. Counsel cites also the case of Barber v. Barber, 21 How. (U.S.) 582.

We realize that this is the law and have no fault to find with this statement of it. At least two-thirds of the cases cited by counsel for appellees, on this proposition, are directly and unequivocally in favor of the appellant, and we could find no stronger authorities no matter where we might look in our favor.

In conclusion we wish to call the court's attention to the fact that in reality there is practically no question of fact decided by the lower court. The sole real question which counsel for appellees claim to be a question of fact is that of the abandonment or non-abandonment of the homestead by Jackson which is a question of law to be now decided by this court in view of the facts as shown by this evidence.

We submit that adverse counsel have failed utterly to sustain the several propositions advanced by them in their brief, and that under the facts as shown by the evidence and the law applicable thereto the decision of the chancellor should be reversed.

Brewer, Brewer & Brewer, for appellee.

Many of the cases cited by counsel on the question turned not only on the question of abandonment, but also upon various statutes in effect in the states where rendered. Alabama, since 1877, has an act which permits the leasing of a homestead without destroying the homestead right in the land, but prior to the passage of this act the supreme court of Alabama was called to pass on the question of whether or not the leasing of a homestead amounted as matter of law to an abandonment of it.

And until the passage of the act mentioned, it was well settled in that state that the leasing for a term of years was considered as a matter of law and abandonment of the homestead. 59 Ala. 566; 41 Alabama 302; 63 Alabama 257. When one has a homestead, and leaves it for the purpose of regaining his health, the law requires him to return to it as soon as his health is regained.

The expression of a wish to return to the homestead is not enough to entitle one to retain a homestead when absent from it.

The record here doesn't disclose that Lindsay Jackson was absent from the land by reason of some casualty or necessity, not for a period of five years, and whatever his intentions were as to returning, are quite immaterial. As the court in Moore v. Bradford, 70 Miss. 70, said: "Ceasing to reside on a homestead is rather matter of fact than an intent."

Upon the facts and the law, we respectfully submit the bill must fail. The lien of the judgment of Alice Jackson was effectual against the real property of the complainant here. Lindsey Jackson had been possessed of real-estate other than that claimed as a homestead, and if there had been no statute creating a lien by the enrollment of the judgment, there is a possibility that the decree would have created only a personal liability, and might not have operated as a lien, although the weight of authority is to the contrary. Conrad v. Everich, 50 Ohio, State 476.

Nor, can it make any difference that the judgment was for the payment of alimony in installment in the future. In Story v. Story, 41 N.J.Eq. 370, the court held that a decree for alimony payable in installments creates a lien upon the lands of the husband as the alimony falls due. This case is reported also in 2 A. 7 A. 525.

And it has been held that although an application for alimony does not specifically describe any property of the husband, the judgment of decree granting the application is the lien of an ordinary general judgment for the alimony so awarded. Coulter v. Lumpkin, 94 Ga. 225, S.E. 461.

We respectfully submit that the land was subject to the execution by the wife for alimony, and this view is supported by several well reasoned opinions, quoted hereinafter. Boyle v. Shuman, 59 Ala. 566; Stown v. Lillie, 63 Ala. 257; T. v. T., 56 Miss. 36; Bennett v. Dempsey, 94 Miss. 406; Majors v. Majors, 58 Miss. 806; Land v. Boykin, 25 So. 172; Porter v. Harrison, 27 So. 302; Hollins v. Crooper, 40 So. 378; Conrad v. Everich, 40 Am. St. Rep. 584; Mosley v. Larson, 86 Miss. 288; Thompson v. Tillotson, 56 Miss. 36; Best v. Zutavern, 53 Neb. 604, 74 N.W. 64; Mahoney v. Mahoney, 59 Minn. 347, 61 N.W. 334; Daniels v. Morris, 54 Iowa 369, 6 N.W. 532, 41 Kan. 342; Moore v. Bradford, 70 Miss. 70, 11 So. 639; Nunn v. Paige, 135 Am. State Reports ; Tyler v. Tyler, 99 Ky. 31, 34 S.W. 898; Menzie v. Anderson, 65 Ind. 239; Conrad v. Everich, 50 Ohio St. 476, 35 N.E. 58; Coffman v. Finny, 65 Ohio St. 61, 61 N.E. 155; See also Hamlin v. Bevins, 7 Ohio 161; Stoy v. Stoy, 41 N. L. Eq. 370, 2 A. 638, 7 A. 625.

And it has been held although an application for alimony does not specifically describe any property of the husband, the judgment or decree granting the application has the lien of an ordinary general judgment for money. Coulter v Lumpkin, 94 Ga. 225, 21 S.E. 4617; Bland v. Putman, 32 So. 616 (Ala); Porter v. Harrison, 24 So. 302; Birch v. Atchison, 82 Ky. 585; Mounger v. Gandy, 69 So. 817; Buffalo Savings Bank v. Hunt, 118...