Meyer Bros. Drug Co. v. Fly

• Court: Mississippi Supreme Court
• Writing for the Court: REED, J.
• Citation: Meyer Bros. Drug Co. v. Fly, 63 So. 227, 105 Miss. 752 (Miss. 1913)
• Decision Date: 13 October 1913
• Docket Number: 16,117
• Parties: MEYER BROS. DRUG CO. v. ANTHONY FLY

63 So. 227

105 Miss. 752

MEYER BROS. DRUG CO. v. ANTHONY FLY

No. 16,117

Supreme Court of Mississippi

October 13, 1913

APPEAL from the circuit court of Pike county, HON. D. M. MILLER Judge.

Suit by Meyer Bros. Drug Company against Anthony Fly. From a judgment for defendant, plaintiff appeals.

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

Reversed.

Thos Mitchell, Green & Green and John C. Vaughan, for appellant.

Under section 2157, Code of 1906, abandonment having been made of the lot without casualty or necessity, the same became liable to indebtedness. Section 2157 of the Code; Bennett v Dempsey, 94 Miss. 406; Thompson v. Tillotson, 56 Miss. 36; Shotwell v. Covington, 69 Miss 335; Wetherbee v. Roots, 72 Miss. 355; Bank v Lyon, 52 Miss. 183; Majors v. Majors, 58 Miss. 809; Moore v. Bradford, 70 Miss. 74; Bank v. Lyons, 52 Miss. 183; Salter v. Embrey, 18 So. 373; Bank v. Lyons, 52 Miss. 183; Whitworth v. Lyons, 39 Miss. 467; Trotter v. Dobbs, 38 Miss. 198; Richie v. Duke, 70 Miss. 69; Campbell v. Adair, 45 Miss. 177; Vignaud v. Dean, 77 Miss. 860; Railroad v. Smith, 70 Miss. 344; Railroad v. Lyon, 54 So. 728-784; Murray v. Charleston, 96 U.S. 432; Sturges v. Crowninshield, 4 L.Ed. 550; McMillan v. McNeil, 4 L.Ed. 552; Fletcher v. Peck, 6 Cranch, 87; Bronson v. Kenzie, 1 Howard, 331; Edwards v. Kearsey, 96 U.S. 595, 24 L.Ed. 793; McCracken v. Hayward, 2 Howard, 618; Insurance Co. v. Debolt, 16 Howard, 416; Douglas v. Pike County, 101 U.S. 677; Bank v. Franklin Co., 128 U.S. 526; Loeb v. Township, 179 U.S. 493; Lessley v. Phipps, 49 Miss. 798; Acker v. Trueland, 56 Miss. 34; Irwin v. Lewis, 50 Miss. 363; Latchford v. Carey, 52 Miss. 593; Jones v. Hobbs, 62 Miss. 15; Adams v. Dees, 62 Miss. 357; Dulion v. Harkness, 80 Miss. 13; Trotter v. Dobbs, supra; Brantley v. Batson, 36 So. 524; Richie v. Duke, 70 Miss. 69, 12 So. 208.

Appellee, being a resident of the state of Louisiana at the time of the levy of the attachment, is not entitled to have a homestead exemption in Mississippi, so as to defeat a lien upon the property which at the date of the contracting of the debt was liable for its payment, and attached therefor. Vignaud v. Dean, 77 Miss. 860; Bennett v. Dempsey, 94 Miss. 408; Moore v. Bradford, 70 Miss. 70; Thompson v. Tillotson, 56 Miss. 36; Salter v. Embrey, 18 So. 373; Watson v. Bank, 119 S.W. 915; Homestead Cent. Dig., Secs. 141-146; Dec. Dig. Sec. 95; Leonard v. Ingram, 10 N.W. 805; Kehnert v. Conrad, 69 N.W. (N. D. 1896), 185; McClellan v. Carroll, 42 S.W. (Tenn. 1897), 185; Baker v. Leggett, 98 N.C. 305; Stinde v. Brehrens, 6 Mo.App. 309; Knox v. Yow, 91 Ga. 375; The City Bank of Macon v. Smisson, 73 Ga. 422; Jackson v. Du Bose, 87 Ga. 76; Cabeen v. Mulligan, 87 Amer. Dec. (Ill. 1865), 247; Northwest Thresher Co. v. McCarroll, 118 P. 353; Lyon v. Adams, 99 S.W. (Ky. 1907), 900; Smith v. Stafford, 112 N.W. (N. D.) 967; Jarvais v. Moe, 38 Wis. 440; Thompson on Homesteads and Exemptions, section 270, and Ungers v. Chapman (Michigan) 109, N.W. 1124; Tracy v. Harbon, 89 S.W. 999.

Judge THOMPKINS, in Thompson on Homesteads and Exemptions, supports this doctrine fully throughout his work. See, also, Watkins v. Overby, 83 N.C. 165; Embry v. Jackson Parish Bank, 51 So. (La. 1910), 87.

There is not, we respectfully submit, a case in the books where it has been held that when a party is attached on the ground of being a nonresident, and a lien is obtained upon property liable to the debt by reason of such nonresidence, that the debtor can defeat the lien by becoming at once a resident. Such decision would be monstrous because it would enable one to defeat the debts which he owed by establishing and declaring an exemption under a statute which could not at the date of the making of the contract have had any possible reference to its obligations.

The doctrine of Trotter v. Dobbs has never been extended to this point, and being erroneous and mischievous, it ought not to be extended further than has been done, and we respectfully submit that the unanimous authority should be followed upon the point here involved.

Mixon & Cassidy, for appellee.

The learned circuit judge in the court below was evidently controlled in the giving of a peremptory instructions by the following propositions: First, that the defendant in attachment was at the time of the trial in the circuit court, actually occupying and residing upon the premises in controversy, he, being a householder, resident of the state of Mississippi, and the head of the family.

The question of abandonment did not seem to occupy the mind of the court for the reason that, at the time of the trial even after levy, the defendant and his family were actually occupying and residing upon the property and claimed the same at that time as a homestead. His right to do this is sustained by an unbroken line of decisions handed down by the supreme court of the state of Mississippi during the past fifty years or more, beginning with the case of Trotter v. Dobbs, 38 Miss. 198, in which case the court said:

"The policy of the statute plainly is, to give to the defendant the use of' the property exempted from execution, for the benefit of himself, and as a means of support of his family. The provision is, that the property shall be 'exempt from seizure or sale under any execution,' etc. No time is limited for the operation of the act, nor restriction put upon the enjoyment of the privilege contemplated by it; but it is extended to 'every free white citizen of this state, being a householder and having a family.' It appears, therefore, that whenever a party fills this description or character, he is entitled to the benefit of the privilege conferred, provided he occupies the position before the land has been sold under execution. For it is as necessary that he should hold the property for the support of himself and his family, where he becomes a householder and head of a family after judgment rendered against him, as when he occupied that relation before the judgment; and the reason of the exemption applies as well in the one case as in the other."

We find this case especially approved in Lesley v. Phipps, 49 Miss. 790, adhered to in Irwin v. Lewis, 50 Miss. 363; Letchford v. Cary, 52 Miss. 791; Jones v. Hart, 62 Miss. 13; criticised but not overruled by Judge CAMPBELL in Richie v. Dukes, 70 Miss. 69 and followed in Dulion v. Harkness, 80 Miss. 8, and Wood v. Bowles, 92 Miss. 843.

Counsel for appellants strenuously insists that the policy of our homestead laws should in effect, be abrogated by overruling the decisions in Trotter v. Dobbs, and those following and approving it, above cited.

The same contention was raised in Lessley v. Phipps, 49 Miss. and completely answered by the court on pages 85 and 86 of the opinion. Moreover, since the decision in the Dobbs case, and also since the criticisms thereof, in Richie v. Dukes, 70 Miss. 869, substantially the same statutes which it is unnecessary to quote, having been re-enacted by our legislature and since the criticisms made by Judge CAMPBELL in Lesley v. Phipps.

Several decisions have been rendered by this court approving the doctrine laid down in Trotter v. Dobbs without so much as referring to the criticisms referred to and in the last expression of this court on the subject Woods v. Bowles, 92 Miss. 843, it is said: "It has been the unbroken authority in this state since the decision of the case of Trotter v. Dobbs, 38 Miss. 198, that a judgment debtor may successfully interpose his claim of exemption as against the execution creditors at any time before actual sale, if the right to claim exemption existed at that time."

And surely it is a vain hope for the appellants to presume that this court will now repudiate a policy so long established, supported by such sound reasoning, and intended for such beneficent purposes by overruling the. decisions quoted.

All of these cases take the position that the debtor may defeat the levy by establishing upon the land prior to the sale thereunder, a homestead, and though the distinguished counsel for appellants attempt to draw the distinction as between one, who, having acquired a homestead in Mississippi, and then moves therefrom, and before judgment and sale returns and occupies the same as a homestead, and one, who, being a resident of Mississippi by some act of his, acquires a homestead, we respectfully submit to the court that, in our opinion, we cannot see the difference. In other words, we take the broad position that the man who never lived in Mississippi, who contracts debts in either of these states, has large property interest here, but has only a ten-acre tract in Mississippi, but perhaps in bankruptcy when the "crash" comes, moves upon this small tract of land even though the same has been attached, that, under the policy of our laws, he can claim that tract as a homestead for the protection of his wife and children.

As we understand the law as it now stands, any person otherwise entitled to exemptions has the right to move upon premises at any time before sale under execution or attachment, and hold same as a homestead, and thereby defeat the sale. Certainly no superior right can be acquired by writ of attachment levied than can be acquired by judgment or decree rendered where both became a lien from the date of rendition. Of course we contend that the right of the appellee to claim exemption existed, notwithstanding any question of abandonment from the date he moved upon the premises, claiming the same as his homestead subsequent to the levy of the attachment writ. We cannot see why there should be any difference between the lien created by a judgment or decree, from that of a lien created by the levy of an attachment writ. If the first two can be...