Moore v. Bradford

• Court: Mississippi Supreme Court
• Writing for the Court: CAMPBELL, C. J.
• Citation: Moore v. Bradford, 70 Miss. 70, 11 So. 630 (Miss. 1892)
• Decision Date: 17 October 1892
• Parties: D. W. MOORE v. J. N. BRADFORD

11 So. 630

70 Miss. 70

D. W. MOORE v. J. N. BRADFORD

Supreme Court of Mississippi

October 17, 1892

FROM the circuit court of Holmes county, HON. C. H. CAMPBELL Judge.

Reversed and remanded.

Noel &amp Tackett, for appellant.

The case is controlled by the decision in Thompson v Tillotson, 56 Miss. 36. In that case, the removal was temporary, and animo revertandi. Here the tenant remained in possession from the first of 1889 until March, 1891. At the time of the sale, Bradford did not reside on the property, and he was not absent by reason of any casualty or necessity. Code 1880, § 1256.

The instructions given for defendant are erroneous. They do not express the statutory requirement that the absence must be temporary, by reason of casualty or necessity and with the purpose speedily to re-occupy.

Hooker & Wilson, for appellee.

1. The testimony precludes the idea that there was any abandonment of the homestead. Bradford went merely to get employment, leaving his family in possession of the homestead. Shortly afterwards his wife went to visit him, intending to return to the home, but was prevented by sickness, and the house was temporarily rented. Bradford never changed his citizenship or place of paying poll-tax, lodge dues and the like.

The homestead laws are to be construed liberally, for the protection of the families of unfortunate debtors. Here there was no such abandonment as made the property liable.

2. If mistaken in this, then we submit that the case comes within the statute which protects the homestead in cases of temporary removal by reason of casualty or necessity, with the purpose on the part of the debtor speedily to re-occupy. The defendant was poor, and sought employment elsewhere. Unfortunately, his wife was taken sick while visiting him, and was unable to return to the home. Before his return, the place was sold at a sacrifice. It is for the jury to decide whether the absence is by reason of casualty or necessity. Here the question was fairly submitted to the jury, and the court below refused to disturb the verdict. Defendant's instructions were qualified by those given for plaintiff.

Renting the property, the time of absence and the like, are only circumstances to show the intent of the debtor; they are not conclusive. Thompson on Homesteads, §§ 272-287.

OPINION

CAMPBELL, C. J.

The first instruction for the defendant is not accurate, as an expression of the law on the subject, because it omits the statutory requirement of the purpose of speedily re-occupying the homestead, and for the further reason that it makes the intent of the party not to abandon the homestead the test of...