Ritter v. Whitesides

• Citation: 179 Miss. 706,176 So. 728
• Decision Date: 01 November 1937
• Docket Number: 32836
• Court: United States State Supreme Court of Mississippi
• Parties: RITTER et al. v. WHITESIDES

176 So. 728

179 Miss. 706

RITTER et al. v. WHITESIDES

No. 32836

Supreme Court of Mississippi

November 1, 1937

Division B

1 HOMESTEAD.

Trust deed executed by husband on 63-acre tract was not void on ground that tract constituted a "homestead," where though tract had formerly been a homestead, husband and wife at time of execution of trust deed lived on a 188-acre tract to which they held title subject to a trust deed, and where removal from 63-acre tract was not occasioned by any casualty or necessity, and there was nothing to indicate that at time of removal there was any intention to return (Code 1930 section 1776).

2 HOMESTEAD.

Though a declaration as to a homestead as provided by statute and declaration's recordation are not required in all cases, it is convenient form of giving notice of purpose to return, though parties may not be actually residing thereon (Code 1930, sections 1767, 1768).

3. HOMESTEAD.

A husband has right to select homestead and to move from one and select another.

4. HOMESTEAD.

Recital by husband in trust deed executed by him alone, that land involved was no part of his homestead, was sufficient evidence of his selection of new homestead, when he and wife were, in fact, occupying other land for living purposes, and recordation of such trust deed prevented the parties from acquiring any but subordinate rights in the land (Code 1930, section 1776).

HON. JAMES A. FINLEY, Chancellor.

APPEAL from the chancery court of Itawamba county HON. JAMES A. FINLEY, Chancellor.

Suit by V. S. Whitesides, receiver for the Bank of Saltillo, against J. W. Ritter and another. From a decree in favor of the plaintiff, the defendants appeal. Decree affirmed.

Affirmed.

I. L. Sheffield, of Fulton, for appellants.

Section 1778 of the Code of Mississippi of 1930 provides that a conveyance, mortgage, deed of trust or other encumbrance upon the homestead exempted from execution shall not be valid or binding unless signed by the wife of the owner if he be married and living with his wife. This section does not provide that they must be living upon the homestead at the time the mortgage is executed.

Collins v. Bounds, 82 Miss. 447, 34 So. 355; Hubbard v. Sage Land & Improvement Co., 33 So. 413; Massey v. Womble, 69 Miss. 347, 11 So. 188; Johnson v. Hunt, 79 Miss. 639, 31 So. 205; Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435; Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 48 So. 516.

Not even the false or fraudulent statement of the husband with reference to the status of the homestead will bar the wife of her rights therein. Her rights do not depend upon mistaken or false statements by the husband but upon the fact of his being the head of a family and using the premises as a home.

Hinds v. Morgan, 75 Miss. 509, 23 So. 35.

The court rendered judgment in personam against J. W. Ritter for $ 665.92, alleged as a balance due on notes made by him to the bank and for the further sum of $ 500, for the use and occupation of the land sued for. The execution of the note, except the one secured by the trust deed and given by J. W. Ritter for $ 162, was denied, and especially the execution of the alleged note by Mrs. L. V. Ritter. No proof was introduced showing that she signed or authorized any one to sign this note for her and judgment should not have been rendered for that sum.

Appellants offered to prove by the witness, G. W. McIntosh, as well as other witnesses, that it was the intention of Ritter to return to his old home, to the sixty-three acre tract of land, and counsel for appellee objected whereupon the court sustained the objection. This was the very gist of the defense. It was certainly competent. The authorities already cited herein amply support this contention. The same witness was asked the question of whether or not Ritter owned an equity in the land deeded by McIntosh to him in 1929 and he was asked the market value of this land, and counsel objected whereupon the court sustained. This evidence was competent to show that the Ritters really at no time owned any interest whatever in the McIntosh land. The legal title was in the trustee for the Federal Land Bank of New Orleans and another mortgage was on the McIntosh land secured to McIntosh in the sum of the balance of the purchase price and Ritter at no time had any equity in the land and, therefore, under no theory could it be argued that he owned the land where he lived from 1926 to 1931. He could not homestead land not owned by him. I submit it was material and the witness should have been permitted to answer.

The evidence demonstrates that Ritter during all the time he lived on the McIntosh land pastured thirty or forty acres of the McIntosh land and in the same enclosure some twenty acres owned by Grimes and eight or ten acres of the sixty-three acre tract, his homestead. For this reason it was his homestead and the court finding that it was not was clearly in error.

It is elementary and needs no citation of authorities that this court has repeatedly construed the exemption laws of the State favorable to the exemptionist. Any doubts arising either as a matter of law or from evidence should be resolved in favor of the exemptionist in order to protect and perpetuate the homestead with its sacred surroundings.

Mortgage against home without signature of wife is void.

45 A. L. R. 415; Collins v. Bounds, 82 Miss. 447; State National Bank v. Lyons, 52 Miss. 181; Howell v. Bush, 54 Miss. 437; Cummings v. Busby, 62 Miss. 195; Duncan v. Moore, 67 Miss. 137, 7 So. 221; Pounds v. Clark, 70 Miss. 263, 14 So. 222; Hubbard v. Sage Land & Improvement Co., 81 Miss. 616, 33 So. 413; Tomlin v. Combs, 21 So. 782.

C. R. Bolton, of Tupelo, for appellee.

The evidence shows without dispute that J. W. Ritter and his family had purchased 188 acres of land from McIntosh in 1926 and had moved on to this land leaving their former residence on the 63 acres of land. It is shown from the testimony of both Mr. Ritter and Mrs. Ritter that the house in which they lived on the 63 acres was a very poor house and the house to which they moved on the 188 acres was a good house. There was also testimony about Ritter having made permanent improvements on the 188-acre homestead. It is undisputed that Ritter and his family were living on the 188-acre tract of land at the time the deed of trust was given with the recital therein that the 63 acres did not form part of his homestead, and that he continued to live on the 188-acre tract until 1931, more than two years after the deed of trust was given to the Bank of Saltillo.

This is not a case of fraudulent statement of the husband against the rights of the wife as might be the case where he actually...