Livelar v. Kepner

• Decision Date: 05 November 1962
• Docket Number: No. 42402,42402
• Parties: Mrs. Effie C. LIVELAR v. Lester M. KEPNER et al.
• Court: Mississippi Supreme Court

Page 346

146 So.2d 346

244 Miss. 723

Mrs. Effie C. LIVELAR v. Lester M. KEPNER et al.

No. 42402.

Supreme Court of Mississippi.

Nov. 5, 1962.

Daniel, Coker & Horton, Fred Lotterhos, Jackson, for appellant.

Nelson Cauthen, Fancher & Fancher, Canton, for appellees.

LEE, Presiding Justice.

Mrs. Effie C. Livelar, on August 27, 1959, filed her bill in the chancery court against Frederick P. Livelar, her husband, and Lester M. Kepner and wife, Mary H. Kepner, to cancel a deed for 160 acres of land, as therein described, executed by her husband to the Kepners on December 20, 1951. She charged that this property was, and had been, the homestead of her and her husband and that she had not signed the deed, and had never released her rights therein. She also sought other relief.

The complainant further alleged that, in 1952, she had filed a suit for separate maintenance against her husband. Copies of such bill, answer of her husband and his answers to her interrogatories, and of the decree of date of November 24, 1953, awarding her $175 per month until further order of the court, were attached to the complaint as exhibits.

The answer of the Kepners denied that the Livelars maintained their homestead on the 160 acres until December 6, 1951. They said that, on November 7, 1951, the Livelars acquired a house and lot in Canton and moved into it as their homestead on November 14, 1951; that shortly thereafter, Livelar called upon Mrs. Livelar to reside with him in the new homestead, and she wilfully refused to do so; and that the 160 acres was no longer a homestead after November 14, 1951. They charged that they made substantial improvements on the place; that Mrs. Livelar visited them on many occasions, observed the improvements being made, commented favorably thereon, voiced no objection thereto, and asserted no claim to the property. They further said that they bought the 160 acres on December 20, 1951, in good faith; that Mrs. Livelar, subsequently by her separate maintenance suit, received a decree in settlement of her rights; and that the assertion of homestead rights was repugnant to the relief granted her in the separate maintenance suit. However, in event the court should hold their deed to be void, then by their cross-bill, they prayed that the large and necessary expenditures, which they had made and which were set out in detail, together with the purchase price of the land, should be declared a lien in their favor, and, unless paid within a reasonable time, the cross-defendants should be declared to be the true owners of the property.

The separate answer of defendant Livelar admitted that he and his wife lived on the 160 acres as a homestead, but denied that they were living on it on December 6, 1951. He alleged that both he and his wife moved from the property on November 14, 1951, and both of them abandoned it. He denied that the deed to the Kepners was void. He alleged that he moved to the property in Canton for reasons of health, intending to take his wife with him, make it their permanent homestead, and abandon the farm property; that his wife refused to sign the deed unless he would give her one-half of the money; that he called upon his wife to accompany him and help to look after him in his infirmity, but she refused to perform her duties to him; and that on December 20, 1951, when he sold the property, it was vacant, wholly abandoned, and no part of his homestead.

On September 15, 1960, it was suggested to the court that the defendant Livelar died on April 30, 1960; and, by decree of October 6, 1960, the cause was revived in the named successors in interest. Additional pleadings were filed by all parties in interest to conform to this change in status.

The deed records of Madison County undisputedly reflected the following: (1) On September 4, 1940, F. P. Livelar purchased the 160 acres of land in controversy, and he and his wife moved upon it. (2) On November 7, 1951, F. P. Livelar purchased a house and lot in the City of Canton. (3) On December 20, 1951, Livelar, without his wife joining, executed and delivered a deed to Lester M. and Mary H. Kepner for the 160 acres in question.

The issue in this case was whether or not Livelar, when he purchased the house and lot in Canton, did so in good faith for the purpose of changing the homestead from the farm to the property in town.

Of course, the burden was on Mrs. Livelar as complainant to make out her case. Her husband had died before the trial; and, on objection, she was not permitted, under Sec. 1690, Code of 1942, Rec., to testify as a witness.

Mrs. Nona Belle Chastain and Mrs. C. R. Russell were called by Mrs. Livelar as witnesses. They lived in Jackson and had visited her in the home on the farm only four or five times. They testified that, about three weeks before Mrs. Livelar went to the hospital, they were in company with her when she was talking to her husband at Johnson's store. Mrs. Chastain said that Livelar told his wife that he had sold the farm and she did not have a place to stay and for her to get her things and get out. Mrs. Russell said that, at the time, he told Mrs. Livelar that she did not have a home anymore at that place as he had sold it. Both agreed that he made an indirect threat against them, if they gave her a place to stay. Neither of these witnesses saw Mrs. Livelar anymore until she was in the hospital, where she went because of a beating administered to her by her husband on December 6, 1951. Obviously they had no personal knowledge as to where Mrs. Livelar had been residing for the three week period since they last saw her. However, when they went to the farm at that time to get Mrs. Livelar's car, Mrs. Chastain said that she saw some of Mrs. Livelar's clothes scattered over the back porch. Several other witnesses testified for the complainant, but their evidence was of little, if any, value.

In her sworn bill for separate maintenance, Mrs. Livelar had charged, among other things, that she was unwilling to sign the deed for the sale of the farm unless the defendant would make some provision for her in money out of the proceeds. On the other hand, in his sworn answer thereto, Livelar had stated that he offered his wife $1,000 to release her interest in the land, and that his reason for purchasing the home in Canton was because of orders from his doctor, as his wife well knew.

Dr. A. P. Durfey, offered as a witness by the complainant to show the extent of her injuries as a result of the beating on December 6, 1951, admitted, on cross-examination, that Livelar was under treatment for his heart condition at that time, and that he had had a serious heart condition for years.

Lester M. Kepner testified that on November 30, 1951, he went to see Livelar at his home in Canton, where he was living at the time. He spent about an hour in an effort to purchase Livelar's farm property. He saw the funiture and household goods that had been out on the farm. The house was fully furnished. There was evidence that he had both eaten his meals and was...