Richie v. Duke

• Court: Mississippi Supreme Court
• Writing for the Court: CAMPBELL, C. J.
• Citation: Richie v. Duke, 70 Miss. 66, 12 So. 208 (Miss. 1892)
• Decision Date: 19 December 1892
• Parties: T. E. RICHIE, ADMINISTRATOR, v. J. S. DUKE

12 So. 208

70 Miss. 66

T. E. RICHIE, ADMINISTRATOR, v. J. S. DUKE

Supreme Court of Mississippi

December 19, 1892

October 1892

FROM the circuit court of Lee county, HON. LOCK E. HOUSTON, Judge.

Appellee Duke, owned and, with his family, resided upon a tract of land containing 160 acres, which was levied on under an execution issued on a judgment in favor of appellant. The land was claimed as exempt, and the sheriff took steps, under § 1251, code 1880, to have the homestead allotted. The freeholders set apart as exempt the west half of the tract which embraced the dwelling and all other buildings. The east half of the land was then advertised for sale under the execution, when the defendant sold and conveyed to one Lewellen the land so allotted to him as a homestead, and having built a cabin on the other 80 acres, he moved upon it before the sale day, and asserted the right to hold that as a homestead. He moved the court to quash the levy as to this land, on the ground that it was exempt, and an issue as to this was submitted to a jury. On the trial, the above facts were shown. The evidence also showed that there was a trust-deed on the entire tract, and that the west half, which was allotted as a homestead, was sold to Lewellen to satisfy a debt secured by this deed. It also appeared that the defendant took no part in the allotment proceedings.

The debt on which the judgment was founded, was contracted prior to the act of 1882, which increased the homestead exemption from 80 to 160 acres. The court refused to give a peremptory instruction to find for plaintiff, but, among instructions gave the following at the instance of plaintiff:

"1. The court charges the jury for the plaintiff that the sale of the west half of the land, in the case named, having been made after the levy of plaintiff's execution had been made, and after the said west half had been set apart to the defendant as a homestead, and after the said east half of said land had been advertised for sale to satisfy plaintiff's execution, the said defendant had no right to move on the east half of said land and claim it as exempt from plaintiff's execution; and the levy thereon by the sheriff was legal, and the motion of the defendant to quash the said levy should be overruled, and the jury will find for the plaintiff that the levy is good."

Verdict and judgment for defendant. Motion for new trial overruled. Plaintiff appeals.

Reversed and remanded.

Clayton & Anderson, for appellant.

1. The debt having been contracted prior to the act of 1882, Duke was only entitled to an exemption of 80 acres. Lessley v. Phipps, 49 Miss. 790; Johnson v. Fletcher, 54 Ib., 628; 96 U.S. 595.

2. All the land having been levied upon, and the homestead having been set apart, the debtor could not sell or abandon this and claim another homestead. Trotter v. Dobbs, 38 Miss. 198, is not an authority for the proposition that this can be done. That and subsequent cases, holding that the debtor may acquire and claim the homestead in land at any time prior to the sale thereof, does not authorize one who has a homestead, and is occupying it as such, to sell that and claim another, thus, by repeated sales, defeating entirely the liens of judgment creditors. Such a scheme or fraud as this could not be tolerated. The homestead right, instead of being a shield, would be converted into an instrument of fraud to defeat creditors. On this point, see Rutherford v. Jamieson, 65 Miss. 219; Stone v. Darnell, 20 Texas, 11; Woodall v. Rudd, 41 Ib., 375; Willis v. Matthews, 46 Ib., 478; Thompson on Homesteads, §§ 225, 319, 419, 648, 856.

On the undisputed facts, the court should have given the peremptory instruction in favor of plaintiff. We ask for a reversal, and that judgment be entered here overruling the motion to quash the levy, and directing the issuance of execution against Duke and his sureties. Code 1880, § 1756.

J. L. Finley, for appellee.

1. Exempt property may be disposed of as other property. Code 1880, § 1257. One may become the head of a family after judgment and before sale. He thus acquires a right to hold exempt property. Trotter v. Dobbs, 38 Miss. 198; Irwin v. Lewis, 50 Ib., 363.

Duke had nothing to do with setting apart one-half the land as a homestead, and was not concluded thereby. He...