Patrick v. Bank of Tupelo

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: Patrick v. Bank of Tupelo, 169 Miss. 157, 152 So. 838 (Miss. 1934)
• Decision Date: 19 February 1934
• Docket Number: 31069
• Parties: PATRICK et al. v. BANK OF TUPELO

152 So. 838

169 Miss. 157

PATRICK et al. v. BANK OF TUPELO

No. 31069

Supreme Court of Mississippi

February 19, 1934

Division B

Suggestion Of Error Overruled March 19, 1934.

APPEAL from chancery court of Prentiss county, HON. JAS. A. FINLEY Chancellor.

Action by Bank of Tupelo against W. E. Patrick and another. From an adverse judgment, defendants appeal. Affirmed.

Affirmed.

Geo. T. and Chas. S. Mitchell, of Tupelo, for appellants.

The question involved in this case is whether or not there was an abandonment of the property in question as a homestead of the parties. The law is well settled that abandonment rests upon intention and unless a person actually intends to abandon, there can be no abandonment.

1 C. J., Abandonment, par. 7, sections 8 and 9; R. C. L., Abandonment, section 5.

Before there can be an abandonment, there must exist the intent to abandon coupled with some clear and affirmative act pointing conclusively to an abandonment.

This case must be determined with reference to the conduct of the parties subsequent to May 13, 1931, and the character of the property in question as a homestead or not must be determined with reference to its treatment subsequent to May 13, 1931.

It is our understanding of the law that even where the head of a family has abandoned certain property as his homestead, yet if said property is attempted to be levied upon under a writ of execution and sold, if that party moves back upon the premises and establishes same as his homestead before the consummation of the sale the right to the homestead exemption immediately exists.

Woods v. Bowles, 46 So. 414; Trotter v. Dobbs, 38 Miss. 198; Lesley v. Phipps, 49 Miss. 790.

W. C. Sweat, of Corinth, for appellee.

Even though she had actually lived in this house, Mrs. Patrick could not have held this property as a homestead while her husband and family resided in Tupelo, where he was engaged in business. The husband is the one who has the right to select the residence and domicile; and, as long as the husband and wife live together, the domicile of the husband is that of the wife. They cannot have two separate homesteads.

Am. L. Inst. Restatement, Conflict of Laws (Proposed Final Draft, No. 1., sec. 29); Land v. Land, 14 S. & M. 99; Hairston v. Hairston, 27 Miss. 794, 61 Am. Dec. 530; McHenry v. State, 119 Miss. 289, 80 So. 763; 19 C. J. 414; 20 C. J. 69; Weisinger v. McGehee, 160 Miss. 424, 134 So. 148; Thompson v. Tillotson, 56 Miss. 40.

This court has, on numerous occasions, held that, where one has left his home for business reasons, even though he intends to reoccupy it at some time in the future, he cannot thereafter claim it as a homestead.

Salter et al. v. Embrey et al., 18 So. 373; Bennett et al. v. Dempsey, 94 Miss. 406, 48 So. 901.

At the time of the trial, the Patricks had no intention whatever of speedily reoccupying this property which they had claimed as a homestead, and, as a matter of fact, no intention of ever reoccupying it unless he got to the point where he could not make a living somewhere else. The court cannot presume that this contingency will happen.

Lindsey v. Holley, 105 Miss. 740, 63 So. 222; Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 So. 227; Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87.

Argued orally by Chas. S. Mitchell, for appellant, and by W. C. Sweat, for appellee.

Griffith, J., Anderson, J., takes no part.

OPINION

Griffith, J.

In 1917 the wife owned a house in Prentiss county which was occupied by herself and husband and children as their homestead. During that year the husband decided to move to Lee county and there to permanently establish himself in business. This was done, and some months thereafter the family joined him in Lee county. Later a residence was purchased in Lee county which was occupied by the husband and his family as their home for several years. The house in Prentiss county was still owned by the wife, but the proof is that up to and including the time next hereinafter mentioned the home of the family was in Lee county, not in Prentiss county.

In 1932 a judgment, obtained against the husband and wife in Lee county, was enrolled in Prentiss county, and an execution thereunder was levied upon the property which formerly had been the homestead in that county. After the rendition of this judgment, but before the issuance of execution, the wife returned to Prentiss county and occupied a room in the aforesaid house owned by her, and, on the day of the sale under the execution, she appeared and gave notice that she claimed the property as her homestead. Her husband had on several occasions spent a day or two at a time with her at said residence in Prentiss county, the remainder of the family remaining at all...