Robert G. Bruce Co. v. Spears, 33200
| Citation | 181 So. 333,181 Miss. 786 |
| Decision Date | 23 May 1938 |
| Docket Number | 33200 |
| Parties | ROBERT G. BRUCE CO. v. SPEARS et ux |
| Court | United States State Supreme Court of Mississippi |
1 HOMESTEAD.
The failure of grantor's wife to sign deed conveying all of timber on all of grantor's land without reserving any exemption made deed void as to a homestead (Code 1930 section 1761).
2 HOMESTEAD.
Where grantor, whose wife had not signed deed, had never made any homestead declaration and no homestead had even been designated or allotted in 424-acre tract, court improperly undertook to allot homestead in suit by grantee against grantor and his wife involving controversy over cutting of trees by grantee on grantor's alleged homestead, but court should have appointed commissioners to make allotment before adjudicating rights of parties (Code 1930, sections 1765, 1767, 1770, 1771).
3. HOMESTEAD.
Where grantor, whose wife had not signed deed, had never made any homestead declaration and no homestead had been designated or allotted in 424-acre tract as provided by statute, grantor and his wife, who thereafter set up homestead claim against grantee, could not be allowed to make selection of homestead in manner different from that prescribed by statute (Code 193.0, sections 1765, 1767, 1770, 1771).
HON. L. A. SMITH, Chancellor.
APPEAL from the chancery court of Grenada county, HON. L. A. SMITH, Chancellor.
Suit by the Robert G. Bruce Company against J. T. Spears and wife to enjoin the defendants from interfering with the cutting and removing of timber by the complainant or to recover the value thereof, wherein the defendants filed a cross-bill seeking to recover the value of timber allegedly cut from their homestead and also the statutory penalty for cutting of trees on the, homestead. Decree for defendants, and complainant appeals. Reversed and remanded.
Reversed and remanded.
Stone & Stone, of Coffeeville, for appellant.
Here is presented to us what appears to be a monstrous proposition that a man can come into court against the grantee in his deed, and with no showing whatever of having withdrawn his consent that he cut the timber that he had sold him, and without any declaration of homestead, informal or otherwise, and get a judgment for the actual value and the statutory penalty for taking the very trees covered by his deed. He can get this by joining in his claim his wife who never has had a deed to the land and who is not the owner of the land and who has never, informally or otherwise, designated her homestead or brought home to the grantee in the deed any designation, informal or otherwise, of land that she claims as her homestead.
If we are to be denied the timber that we bought and paid for on the SW 1/4 of Section 29, then T. J. Spears and the rest of his land must answer to us for this timber denied.
Federal Land Bank of New Orleans v. Miles, 169 Miss. 43, 152 So. 472; Fuquay v. Jordan, 172 Miss. 11, 158 So. 795; Lewis v. Ladner, 168 So. 281.
We cannot see any reason whatever why the action of the Chancellor in allowing this $ 375 which was shown to be the value of the timber denied, should not be held good against not only T. J. Spears individually but against all of the four hundred and twenty-four-acre tract of land not claimed as a homestead, and we will not argue this proposition further unless perchance it be denied in the argument of our distinguished opponents.
While the legislature of 1924 might have justified in some possible cases the recovery of money value and statutory penalty, still nothing has ever come up in the decisions or in the Legislature that even slightly repudiates what has been written down for a hundred years in the law books of the State of Mississippi about statutory penalty, and we desire to measure this case up, by the side of some of these opinions, some few of the many, and see if there is any justification whatever in the law and in the adjudications of Mississippi for what we consider this monstrous decision.
Bolingler-Frank Co. v. Tullus, 124 Miss. 855, 87 So. 486; Massey v. Womble, 69 Miss. 347, 11 So. 188; Therrell v. Ellis, 83 Miss. 494.
W. M. Mitchell, of Grenada, for appellees.
The deed made by J. T. Spears to the Bruce Company was absolutely void, insofar as it attempted to convey the timber on the homestead without the wife joining therein.
Rosenbaum v. Blackwell, 110 Miss. 452; Young v. Ashley, 123 Miss. 693; Federal Land Bank v. Miles, 169 Miss. 458.
Even where the wife is one of the grantees in the deed, it is void as to all except the wife, so far as the homestead is involved.
Chapman v. Poindexter, 101 Miss. 496.
Hence it is clear that these parties had the right to prohibit the complainant and his agents from going upon the homestead and cutting the timber thereon, and that when they ignored their notices not to do so, and cut said timber after receiving said notices, they became liable not only for the actual value of the timber so cut, but also for the statutory penalty of $ 15 per tree.
This is well settled in this state, and has been the law ever since the amendment of 1924 to the statute providing for penalties for cutting certain kinds of trees without the consent of the owners.
The fact that Spears had never made a statutory declaration homestead makes no difference.
Cowles Horton, of Grenada, for appellees.
It is true that Spears had not made a statutory declaration as to his homestead (Sec. 1767, Code 1930) but he and his wife and family" resided" thereon and he owned it. This is all that the law required.
The statute requires (Sec. 1778, Code 1930) that a conveyance of a homestead or any interest therein by the husband without the wife's signature "shall not be valid or binding." It is, in fact, a void, lifeless, useless act. It operates as nothing and does not even create an estoppel against the husband himself. This is the holding in all of the decisions.
Young v. Ashley, 123 Miss. 702; McDonald v. Sanford, 88 Miss. 633; Bolen v. Lilly, 85 Miss. 344; R. R. Co. v. Singleterry, 78 Miss. 772; McKenzie v. Shows. 70 Miss. 388.
For argument's sake we shall assume that prior to the notice not to cut on the homestead the deed from Spears might have operated as a license to the appellant but, if it did, that license was certainly revoked and extinguished after that notice was given.
Walton v. Lowrey, 74 Miss. 486; Blair v. Russell, 120 Miss. 108.
Appellant 's cutting on the homestead was a trespass.
Appellant's deed to this timber was veld. It conveyed nothing insofar as the homestead was concerned, Its entry on the homestead and cutting of timber thereon after the notices given by these parties was certainly a wilful one, or if not, then clearly an act which was negligent to the grossest degree. Under such circumstances the statute applies and under the statute the court could do no more than to adopt the arbitrary sum which the law fixed for the trees so cut.
Perkins v. Hackleman, 26 Miss. 41; Keirn v. Warfield, 60 Miss. 799; Crisler v. Ott 72 Miss. 166; McCleary v. Anthony, 54 Miss. 708; Therrell v. Ellis, 83 Miss. 494; Walton v. Lowrey, 74 Miss. 486; Blair v. Russell, 120 Miss. 108.
The learned court below was not called upon to pass upon the subrogation features presented by the bill herein for the reason that appellant received credit for the $ 375 found to be due it against the sums which appellees otherwise would have recovered. No resort to any security, therefore, was necessary for the collection of this payment even if appellant was entitled to a refund to that amount.
Argued orally by W. I. Stone, for appellant, and by Cowles Horton and W. M. Mitchell, for appellees.
The appellant, the Robert G. Bruce Company, a corporation, filed its bill against the appellees, J. T. Spears and wife, Mrs. Lizzie Spears, by which it sought injunctive relief and recovery of a personal judgment against J. T. Spears. J. T. Spears and his wife answered, denying the material allegations of the bill, and denying that appellant was entitled to injunctive relief or to any personal money decree. They made their answer a crossbill and sought to recover the value of certain timber alleged to have been cut from their homestead and also the statutory penalty for the cutting of trees on their homestead. The court below allowed the appellant a money decree against Spears for the amount claimed, and sustained the cross- bill of appellees allowing a recovery for the actual value of the timber cut from the homestead and likewise the statutory penalty, which amount exceeded the personal decree against Spears. A judgment over was awarded the appellees for the difference, from which decree appellant appeals.
The allegations of the bill are in substance as follows: On March 4, 1936, J. T. Spears executed a warranty deed to Robert G Bruce Company to certain timber on the N.W. 1/4 of section 32, and W. 1/4 of section 29, except the N.E. 1/4 of the N.W. 1/4 of section 29, and except 16 acres off of the north end of the N.W. 1/4 of the N.W. 1/4 of section 29, all in township 23, range 7 east, Grenada county, Miss., containing 424 acres. The deed was exhibited with the bill, and the consideration recited was $ 1,200, which was alleged to have been paid. Mrs. Spears joined in the deed and conveyed certain lands as a part of the same consideration to appellant, but the lands so conveyed by her are not here in controversy. The purchase price of the timber was paid out in the main to satisfy an existing prior deed of trust on the 424 acres, and the balance was applied to the payment of taxes in default. The deed of trust was satisfied and was exhibited. As to these payments, the appellant alleged that,...
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