Ross v. Porter

• Decision Date: 14 January 1895
• Court: Mississippi Supreme Court
• Parties: E. V. Ross ET AL. v. ANNIE E. PORTER ET AL

16 So. 906

72 Miss. 361

E. V. Ross ET AL. v. ANNIE E. PORTER ET AL

Supreme Court of Mississippi

January 14, 1895

FROM the chancery court of Lee county. HON. BAXTER McFARLAND Chancellor.

This is a bill by appellees, Annie E. Porter, for herself and as next friend of C. R. Porter and Lucien L. Porter, against T. J Ross, their guardian, and against W. C. Ross and Laura Porter, sureties on his bond, and against appellant, Mrs. E V. Ross, sole heir of S. H. Ross, deceased, another surety. The purpose of the bill is to obtain a decree against said sureties for certain sums due to each of the complainants by T. J. Ross, their guardian, he having squandered their funds. The bill recites that S. H. Ross died seized of a certain lot in the town of Verona, in Lee county, which, after his death E. V. Ross, his widow and sole heir, had sold and conveyed to V. C. Kincannon. The bill asks that this lot be subjected to complainant's debts, as having belonged to S. H. Ross at the time of his death. V. C. Kincannon is made a party defendant. The bill also seeks to subject to complainant's demand against their guardian and his sureties a certain tract of land in the country containing about sixty-five acres, and which appellant, Mrs. E. V. Ross, claims was the homestead of her husband at the time of his death, and descended to her free from liability to his debts. On the other hand, V. C. Kincannon, by his answer, avers that the lot in the town of Verona was the homestead of S. H. Ross at the time of his death, and as such, is exempt.

The facts in evidence touching the question of homestead, briefly stated, are as follows: In 1879 S. H. Ross was elected tax assessor of Lee county, and removed from his country place to Verona, intending, according to some of the testimony, to return when he should cease to be assessor. There is testimony tending to show that he removed to Verona because it was a railroad station, and he could better discharge the duties of his office, and also because his country home was in a part of the county thickly populated with negroes, and, on account of the perturbed political condition of the country, it was considered unsafe to leave his wife there alone. He purchased a house and lot in Verona, and lived in it with his wife. He was twice re-elected assessor, but, in 1887, ran for the office of treasurer, and was defeated. He thereupon determined to carry out his purpose of returning to his country home, and moved from his town place and rented it to another. After boarding awhile, in July, 1888, he went to the home of his wife's brother, in the country, about five miles from his own farm. Before leaving Verona, he had gone with his wife to his farm, which was then rented for the year, and arranged with his tenant to store on the place the share of the crops coming to him as landlord, and also for the surrender of possession to him in October, after the crops should have been gathered. While visiting at the home of his brother in law, his health, which was always delicate, grew rapidly worse, and he remained there ill until sometime in November, when he died. After his death, E. V. Ross, his widow, took possession of the farm, and was occupying it as her home when the bill in this case was filed.

On final hearing, the court was of the opinion that both homesteads had been abandoned, and subjected them to the debts of complainant. From this decree, Mrs. Ross and V. C. Kincannon appeal.

Decree affirmed and bill dismissed.

J. A. Blair and Brame & Alexander, for appellant, E. V. Ross.

If S H. Ross, by acquiring the home in town, lost the one in the country, he had reacquired the latter at the time of his death. One cannot assert a claim to two homesteads at the same time. It is not true, however, that one may not have two or more places, either of which he is entitled to call home. If Ross elected to make the place in town his homestead there was nothing about this that was irrevocable. Before any lien attached, or before a sale under execution, he could abandon the urban home and reacquire the rural. This, the evidence clearly shows, was done. We recognize that occupancy in some form or other is essential. A bare intent to occupy is insufficient; but preparation to occupy a homestead is often construed as equivalent to actual occupancy. It is not required that the exemptionist and all his family must be bodily on the premises before the homestead right accrues. Pedis possessio is not...