Levis-Zukoski Mercantile Co. v. McIntyre

• Decision Date: 02 November 1908
• Docket Number: 13,494
• Citation: 93 Miss. 806,47 So. 435
• Court: Mississippi Supreme Court
• Parties: LEWIS ZUKOSKI v. WILHELMINA MCINTYRE

47 So. 435

93 Miss. 806

LEWIS ZUKOSKI v. WILHELMINA MCINTYRE

No. 13,494

Supreme Court of Mississippi

November 2, 1908

FROM the chancery court of Holmes county, HON. JAMES F. McCOOL Chancellor.

Mrs McIntyre, appellee, was complainant in the court below Zukoski, appellant, was defendant there. From a decree in complainant's favor the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Decree reversed and bill dismissed.

W. S Tackett, for appellant.

The land was not a homestead. Section 2146 of the Code provides that the homestead shall consist of "the land and buildings owned and occupied as a residence." Section 2157 provides that "whenever the debtor shall cease to reside on his homestead, it shall be liable to his debts" (cease to be a homestead) "unless his removal be temporary, by reason of some casualty or necessity, and with the purpose of speedily reoccupying it as soon as the cause of his absence can be removed." Under these two sections there are two classes of homesteads. One under section 2146 where, the other necessary conditions existing, the owner actually resides upon and occupies the building, on the land. Another under section 2157 where, the other necessary conditions existing, and the land having become impressed with character of a homestead under section 2146, the owner temporarily ceases to reside thereon, by reason of some necessity or casualty, with the purpose (at the start and continuously thereafter) "of speedily reoccupying it as soon as the cause of absence can be removed." A homestead of one class when called in question must be established or overthrown, by an entirely different character of evidence required to establish or overthrow a homestead of the other class.

Appellee's bill is founded upon section 2146 and contains no allegations which would admit evidence of the facts dealt with in section 2157. The language of the bill is almost a literal copy of section 2146.

There is no more elementary rule of evidence than the one that "the proof must correspond with the allegation and be confined to the point at issue." Under this rule the proof ought and must show that Mrs. Watson was actually residing on the land at the time of the execution of the appellee's deed.

But even had the bill proceeded on the theory that this land was a homestead of the class dealt with under section 2157, no such homestead has been established. Before proceeding further, however, I desire again to call the court's attention to the fact, that cases must be tried and determined on the theory made by the pleadings, and not upon any theory different from the one made by the pleadings, which may be evolved from the evidence after the same comes in. Allegata et probata is a rule of both pleading and evidence, and is fundamental in all jurisdictions where cases are tried on written pleadings. "Allegations are essential to invest the court with jurisdiction of a subject matter, and to authorize it to proceed with a hearing. Such being the jurisdiction, the authority, the agency--it must be followed. The evidence must be relevant, otherwise it is incompetent. Evidence which does not correspond or is without allegation, is surplusage, and should be stricken out." Hughes on Procedure, sections 5a and 79. Allegations are construed most strongly against the pleader, and the expression of one thing is the exclusion of the other. Now "land and buildings" are not "occupied as a residence" by the owner thereof, when he has "ceased to reside" thereon, although his removal be temporary. The two things are distinct and inconsistent with each other, and so recognized by the statute. One of them is set out in the bill; the other, therefore, is excluded.

The land was not a homestead even under section 2157. What evidence is there to show that the removal was temporary?

J. Wiener, for appellee.

The conveyance from Mrs. Watson to Mrs. McIntyre regardless of registration was good, and evolves Mrs. Watson's title on Mrs. McIntyre. The homestead may be devised by the exemptionist, and even in case of death and intestacy, its character is preserved, and it descends to the widow and grandchildren.

The failure to file her deed for record did not prejudice Mrs. McIntyre's title so far as these present creditors are concerned.

The rule of caveat emptor applies to all execution sales. Davis v. Hamilton, 50 Miss. 222.

A perusal of Mrs. Watson's entire testimony, both her direct and her cross-examination, not merely a few excerpts selected by appellant's counsel, will easily disclose how anxiously she clung to this homestead, how jealously she watched and guarded it, and how tenaciously she stayed and resided on it. She never ceased to live on it, she was on it constantly. She never abandoned it; so to do was never her intention, and never entered her mind. It was "the only home she had, she had lived on it all her life," and she meant to keep it as such until the very day when misfortune forced her to part with it.

She was separated from her husband, she lived apart from him, together with her three children, supporting them and herself by her own efforts. This is established. She stated it frankly and to the point. She also stated that her husband owned no land, no property, he owned nothing.

OPINION

MAYES, J.

Mrs Johana Lou Watson is a married woman, with a husband and three children living. In 1904 she owned the land...