Parisot v. Tucker

• Decision Date: 23 April 1888
• Court: Mississippi Supreme Court
• Parties: S. H. PARISOT ET AL. v. T. D. TUCKER, ADMINISTRATOR, ET AL

4 So. 113

65 Miss. 439

S. H. PARISOT ET AL. v. T. D. TUCKER, ADMINISTRATOR, ET AL

Supreme Court of Mississippi

April 23, 1888

April 1888

APPEAL from the Chancery Court of Yazoo County, HON. E. G. PEYTON Chancellor.

N Birmingham died in May, 1882. At the time of his death he was residing with his family in the village called Vaughn's in Yazoo County, upon a four-acre lot of land, on which were situated a hotel, stables and such other buildings as he used in conducting the business of a hotel-keeper. "Adjoining this four-acre lot," as shown by the testimony in this case, but separated from it by a railroad track, right of way, and ground owned and used by the railroad company for depot purposes, was another tract of land owned by Birmingham, and cultivated by him in his lifetime.

In September, 1883, Birmingham's estate was declared insolvent, and the administrator thereafter sold all the property of the estate for the benefit of the creditors except the tracts of land above mentioned, which the heirs claimed had descended to them as the exempt homestead of the decedent.

Thereupon, in August, 1885, S. H. Parisot and others, creditors of the decedent, exhibited this bill against T. D. Tucker, administrator, and the heirs of the decedent's estate, asking that there be allotted "to the heirs of said N. Birmingham a homestead in said Vaughn Station lot, not exceeding in value the sum of two thousand dollars; and that said 74 acre tract of land and the residue of the Vaughn Station lot, after the allotment of the homestead as aforesaid, be sold for the payment of the debts of said N. Birmingham, deceased."

The defendants answered, claiming the house and lot and the 74 acre tract as the homestead, and exempt from the claims of creditors of the deceased Birmingham.

The evidence was conflicting as to the value of the property so claimed as exempt at the time of Birmingham's death, some witnesses putting its value as high as $ 6000, while others put it at $ 2000. But the evidence showed that since Birmingham's death the whole of the property in controversy has depreciated in value. The chancellor dismissed the bill of complainants, and they appealed.

Section 1248 of the Code of 1880 is as follows:

"Every citizen of this State, male or female, being a householder and having a family, shall be entitled to hold, exempt from seizure or sale under any execution or attachment, the land and buildings owned and occupied as a residence by such debtor; provided the quantity of land shall not exceed eighty acres, nor the value thereof, inclusive of improvements, the sum of two thousand dollars."

Section 1249 declares that,

"Every person, being a householder, and having a family, residing in any city, town or village, shall be entitled to hold, exempt from seizure or sale, under any execution or attachment, the land and buildings owned and occupied as a residence, by such debtor, nor to exceed in value two thousand dollars."

Section 1277 provides that, "The property exempted by law from sale under execution or attachment, shall, on the death of the husband or wife owning it, descend to" the heirs of the decedent.

Decree affirmed.

J. C. Prewitt and T. H. Campbell, for the appellants.

At the time of N. Birmingham's death in May, 1882, his property decended to his heirs subject to his debts, except so much thereof as was exempted by law to the said Birmingham.

What is that which descends to the heir free from the debts of the ancestor? Section 1277 of the Code of 1880 answers this question as follows: "The property exempted by law from sale under execution or attachment shall on the death of the husband or wife descend * * * * * * etc." What property was exempted to N. Birmingham at the time of his death?...