Powers v. Sample

• Decision Date: 05 November 1894
• Citation: 72 Miss. 187,16 So. 293
• Court: Mississippi Supreme Court
• Parties: J. D. POWERS ET AL. v. J. A. SAMPLE

16 So. 293

72 Miss. 187

J. D. POWERS ET AL. v. J. A. SAMPLE

Supreme Court of Mississippi

November 5, 1894

October 1894

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

Ejectment. Judgment for defendant. Plaintiffs appeal.

The controlling facts, as found by the court from the record, are stated in the opinion.

Judgment reversed.

Hooker & Wilson, for appellant.

The homestead is a privilege, and not a right. It does not depend upon the age, health, or physical condition of the occupant. He must be a householder and the head of a family. In this case, unquestionably, the son, and not the father, was the householder, and the son was the head of the family. It is immaterial that the son testifies that he regarded his father as the head of the family. This is merely a conclusion of his, and it is at variance with the facts. It is absurd to say that J. A. Sample displaced and superseded J. N. Sample as the head of his own family. The family was in no way dependent upon J. A. Sample, who, in his old age, moved to his son's house. The head of the family is one who provides for and has control of it.

The court below misconstrued the language in Pearson v Miller, 71 Miss. 379. Simply living with a family does not constitute one the head of the family; he must have control, and the other parties must, in some way, be dependent upon him. 42 Ga. 405; 32 Gratt. (Va.), 18; 48 Tex. 517; 50 Ib., 483; 54 Miss. 632.

E. F. Noel, for appellee.

This case is fully covered by the decision in Powers v. Sample, 69 Miss. 67, and authorities cited. Even if it be established that the land in controversy was in the possession of J. N. Sample as the head of the family, it would not be subject to sale. His tenancy, even though it be permissive or at will, would clothe the land with exemption privileges. King v. Sturges, 56 Miss. 606.

I submit that a consideration of the facts in this case demonstrates that appellee was entitled to claim the land as exempt. A family is "a collection of persons living together under one head. A householder having a family may be characterized as the head of a family, occupying a house and living together in one domestic establishment. He need not be a husband or father, nor need the family over which he has headship and control be kept together as a unit continuously." Pearson v. Miller, 71 Miss. 379. Under this decision, I think the evidence shows J. A. Sample to be a householder. But, if he were not, the property would still be exempt, as it is in the possession and ownership of some one of that household. Thompson on Homesteads, § 224. As this court said on a former appeal: "It is no concern of the creditor to which member of the family the title belongs." It is the occupancy as a residence, and not the title, that the statute protects. McGrath v. Sinclair, 55 Miss. 89; King v. Sturges, 56 Ib., 606; Steen v. Hamblet, 66 Ib., 112; Wilcher v. Thompson, 12 So. R., 828.

Argued orally by E. F. Noel, for appellee.

OPINION

COOPER, C. J.

The plaintiffs in this action claim title to the land demanded by virtue of a purchase at execution sale under a judgment against the appellee. The defense is that the land was exempt by law from sale under execution as a homestead. By our law it is declared that "every citizen of this state, male or female, being a householder, and having a family, shall be entitled to hold as exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence by him or her; but the quantity of land shall not exceed one hundred and sixty acres, nor the value thereof, inclusive of improvements, save as hereinafter provided,' the sum of two thousand dollars." Code 1892, § 1970. It is admitted by appellants that the quantity and value of the land is within the limits allowed by law, the single question of contention being whether the appellee, on the facts shown in evidence, is a "householder having a family" within the meaning of the law.

The appellee is an aged widower having two adult children, Mrs Garrett, a married lady, who resides with her husband in the house occupied by the appellee as a residence during the life of his wife, and J. N. Sample, a married son. Up to within a short tune of the execution sale, the appellee resided with his daughter, but at that time he had removed to the house occupied by his son, which house had been built by the son many years ago, and has been ever since occupied by him as a residence. The title of the land was in the appellee, and his contention is that this house is now owned and occupied by him as a residence;...