McKenzie v. Shows

• Decision Date: 23 January 1893
• Citation: 70 Miss. 388,12 So. 336
• Court: Mississippi Supreme Court
• Parties: PETER MCKENZIE ET AL. v. J. L. SHOWS ET AL

12 So. 336

70 Miss. 388

PETER MCKENZIE ET AL. v. J. L. SHOWS ET AL

Supreme Court of Mississippi

January 23, 1893

FROM the chancery court of Jones county, HON. W. T. HOUSTON Chancellor.

One Yawn was the owner of 160 acres of land, which he occupied with his wife, as their homestead, and, while so occupying it, he conveyed, by deed, to appellant, McKenzie, all the timber of a designated size growing on the land, no time being fixed for its removal. The deed was acknowledged and placed upon record. Afterward, Yawn and wife, by joint deed conveyed the land to Collins, who conveyed to appellee Shows. Soon after the latter went into possession, McKenzie entered on the land and began to cut and remove timber, when he was enjoined by appellees. The only question presented by the case is the effect of the conveyance by Yawn of the timber growing on the homestead without the joinder of his wife. The court below perpetuated the injunction, and defendant appeals.

Section 1258, code 1880, provides that "no mortgage, deed of trust, or other incumbrance upon the homestead exempted from execution, shall be valid or binding unless signed by the wife of the owner, if he is married and living with his wife."

Affirmed.

R. H. Thompson, for appellant.

1. Yawn, the husband, owned the homestead. His wife had only a veto power on conveyances by him. He could sell against her wishes, if an abandonment were contemplated and takes place. If the decree in this case is correct, a husband cannot control his own. He could not sell fire-wood, stone, gravel, sand or growing crops from the homestead, or clear the land for cultivation. Such is not the law. He may even lease homestead lands if the lease does not interrupt or interfere with their use and occupancy as a homestead. Thompson on Homesteads & Exemptions, § 471; Smythe on Exemptions, § 303; 38 Iowa 182; 63 Tex. 586; 81 Ib., 317; 32 N.W. 315; 39 Iowa 101. He may dedicate a part of the homestead to the public for a street, the homestead not being impaired. 52 Ill. 78; 22 Cal. 484. He may grant license to remove minerals. 39 Iowa 101.

2. The deed by the husband is good to vest an interest in reversion, expectant on the termination of the homestead estate. 1 Lea, 543; 2 Ib., 237; 14 Cal. 472; 16 Cal. 213; 16 Tex. 56; 36 Ill. 243; 30 Vt. 678; 46 Wis. 677. The homestead has terminated, and appellant's interest at once vested. The wife is not complaining. See 58 Tex. 79.

Shannon & Hardy, for appellees.

Growing trees are part of the realty. Harrell v. Miller, 35 Miss. 70; 2 Bouvier's Law Dict., 608; 2 Black. Com., 281. It was necessary, therefore, for the wife to join in the deed. Code 1880, § 1258. There is a difference between growing crops and growing timber. A sale of the latter is an incumbrance on the land, especially where there is no time for removal of the timber. 5 Am. St. Rep., 570; 1 Greenleaf on Ev., § 242; 10 Ad. & El., 753.

OPINION

WOODS, J.

In this state, for more than thirty years, and since the opinion of this court in Harrell v. Miller, 35 Miss. 700, it has been settled law that trees growing upon land are part and parcel of the realty; that "the term land embraces, not only the soil, but its natural products growing upon and affixed to it."

Was the sale of all the merchantable timber, of certain dimensions, on the entire homestead, with an indefinite time for its removal, a conveyance of an interest in the land, or an incumbrance upon it, and invalid, and of no force, because of the failure of the wife to join in the deed? The growing trees are a part of the realty, and may be, in case the lands are what are denominated timber-lands in contradistinction to other lands called agricultural lands, a very valuable part of the realty. In a readily supposable case, the sale and removal of the entire forest growth would practically destroy the value of the realty. In the case at bar it is alleged in the bill, and not denied in the answer, that the lands in question would be only worth about one-half as much as they are, if the timber should be taken off.

Under our own decision referred to, the sale of the growing timber is a sale of a part and parcel of the land itself. It is a conveyance of an interest in the land--in the present case an important interest. By all authorities, it is an incumbrance upon the homestead. Says Cooley, J., in Post v. Campau, 42 Mich. 90, 3 N.W. 272, "any thing...