Rutherford v. Jamieson

• Decision Date: 30 January 1888
• Court: Mississippi Supreme Court
• Parties: J. R. RUTHERFORD v. C. L. JAMIESON

3 So. 412

65 Miss. 219

J. R. RUTHERFORD v. C. L. JAMIESON

Supreme Court of Mississippi

January 30, 1888

APPEAL from the Circuit Court of Tippah County, HON. W. S FEATHERSTON, Judge.

In December, 1879, J. R. Rutherford moved his family from his farm to the village of "Blue Mountain" for the purpose of educating his daughter. He there contracted for the purchase of a house to be paid for in five annual payments, and in default of payment of the notes which he gave therefor he was to be charged with rents. His wife and daughters moved into the house and remained there several years. The house was not paid for.

In 1880, Rutherford was the owner of two adjoining tracts of land in Tippah County, one in section 13, the other in Section 14, of 160 acres respectively. It seems that he and his boys remained on the farm during that year, living in houses located on the tract in Section 14, and cultivating a few small patches thereon, but carrying on the bulk of their farming operations on the adjoining tract in Section 13.

On Jan 21, 1880, Rutherford, who was a member of the Board of Supervisors, applied to the County Treasurer of Tippah County to borrow $ 731.00 from the Chickasaw school fund. The money was lent him, and he executed a deed of trust on his land in Section 13, as security therefor. His wife did not join in this conveyance. In the autumn of 1880, Rutherford sold his tract in Section 14 on which he had been living and he and his boys moved on the tract in Section 13. Afterwards his wife and daughters returned and also lived on this tract. In 1886, this land in section 13 was sold under the trust deed and the purchaser, C. L. Jamieson, brought this action of ejectment to obtain possession. The jury found for the plaintiff. The defendant appealed.

Affirmed.

Thomas Spight, for the appellant.

The policy of exemption laws, as construed by this court in numerous cases, is a liberal one, and it is declared to be for the benefit, not so much of the husband and father, as for the wife and children, notwithstanding the follies, vices and crimes of the head of the family.

Appellant was using and cultivating the land in controvesy as a means of support for his family, and never abandoned it as a home and although it should be made clear that when the deed of trust was executed, appellant had never taken up his actual physical residence upon the premises; yet if it should further appear that he had parted with the title to his old home on a 1/4 of land adjoining his new home, and had adopted the land in controversy as a home, and was doing acts indicating an intention to enter very soon upon actual occupancy, and did so in a reasonable time, then the law would treat it as his homestead, and clothe it with the legal rights, privileges and immunities of an exempt homestead.

Edwards v. Fry, 9 Kan. 425; Monroe v. May, 9 Kan., 475; Brown v. Martin, 4 Bush (Ky.), 47; Williams v. Swetland, 10 Iowa 51; Neal v. Coe, 35 Iowa 407; Scott v. Dyer, 60 Texas, 135; Reske v. Reske, 51 Mich. 541, 47 Am. Reports, 594.

Thurmond & Harris, for the appellee.

The land must be actually occupied as a homestead, not merely intended to be in the...