Scott v. Scott

• Decision Date: 27 January 1896
• Citation: 73 Miss. 575,19 So. 589
• Court: Mississippi Supreme Court
• Parties: SAM SCOTT ET AL. v. EUGENIE SCOTT

19 So. 589

73 Miss. 575

SAM SCOTT ET AL. v. EUGENIE SCOTT

Supreme Court of Mississippi

January 27, 1896

October 1895

FROM the chancery court of Leflore county HON. CLAUDE PINTARD Chancellor.

The appellee filed her bill in equity, averring that she is, and was on June 18, 1894, the wife of the defendant, Sam Scott and that, on that day, while living with him as his wife, on the premises in controversy, he drove her and their child from their home thereon, without just cause or provocation and since then would neither live with them nor permit them to live with him; that complainant, in consequence, had been compelled to live with her mother; that he afterwards filed a false and scandalous bill for divorce, but had realized the gross injustice of the proceeding and dismissed the same; that at, and prior to, her being driven away from her husband, who now resides in another state, he owned and occupied the premises in controversy, being a house and lot in Greenwood, Miss. as his homestead, and continued to own and occupy it until a few days prior to the filing of her bill, when, in pursuance of his design to dispose of said property and leave the state with the proceeds, he sold and conveyed the same to the defendant, S. A. Johnson, without the knowledge or consent of complainant and without her signature to the deed of conveyance, the said Johnson, at the time, having full knowledge that said premises constituted the home of complainant and that she would not consent to the sale thereof. The complainant charged that the deed to Johnson was void, and prayed cancellation of the same, that possession be awarded to her, and for general relief.

The defendants, Scott and Johnson, filed separate demurrers to the bill. These demurrers are the same substantially, and raise the questions discussed in the opinion of the court.

Decree affirmed.

Coleman & Somerville, for the appellants.

1. The wife's signature is not essential to the validity of the husband's conveyance of the homestead, unless he is living with her. Code 1892, § 1983. The restriction is purely statutory, is in restraint of alienation, and should be strictly construed. The courts in analogous cases have declined to engraft exceptions upon the statute. Adams & Co. v. Dees, 62 Miss. 354; Smith v. Ratcliff, 66 Ib., 683. In this state the wife has no estate in the homestead, and the Wisconsin cases and the text of Waples on Homestead and Exemption, relied on by the appellee, have no application to the case at bar, in which the appellant was called on to resist an assertion of title and claim of right of possession. The bill shows that after driving away his wife Scott himself abandoned the homestead, and, as his right to fix the residence is fully recognized, it is hard to seen how the property can be treated as retaining its character as a homestead. Wilson v. Gray, 59 Miss. 525; Billingsley v. Niblett, 56 Ib., 540; Smith v. Sherck, 60 Ib., 594; Massey v. Womble, 69 Ib., 350; Hill v. Franklin, 54 Ib., 632; Hand v. Winn, 52 Ib., 788; Thoms v. Thoms, 45 Ib., 264; 9 Am. & Eng. Enc. L., p. 475 et seq.

2. During the lifetime of the husband the wife has no such estate in the homestead as entitles her to resort to a court of equity for its protection. This was the settled doctrine of this court prior to the passage of the act of 1873, and as that act only gave her a veto upon the power of the husband to convey, without vesting any estate in her, it would seem that the rule remains unaffected. In addition to the authorities above cited, see Duncan v. Moore, 67 Miss. 136; Pounds v. Clark, 70 Ib., 263; Thompson on Homesteads, § 693; Guiod v. Guiod, 14 Cal. 507; Vancleave v. Wilson, 73 Ala. 387. In Texas the doctrine of community property exists, and in Kansas the wife is recognized as having an existing interest in the property. The decisions cited by appellee from those states are, therefore, not in point; nor are the decisions of the Illinois and Michigan courts relied on, authority here, for in the former state the decisions are counter to an unbroken line in this state; and in the latter, it was only hypothetically remarked in one case that if in fact the wife had an equitable estate in the homestead, she could protect the same by cross bill. Cassell v. Ross, 3 Ill. 245; Helm v. Helm, 11 Kan. 21; Wisner v. Fornham, 2 Mich. 472. It is held in Iowa that, under the statute of that state, the husband and wife are joint tenants of the homestead, and so, also, in Georgia the wife has affirmative rights in the homestead, and consequently the decisions of the courts of those states have no application to this controversy. Adams v. Beale, 19 Iowa 61; Georgia Code 1873, § 2041. See Code of Alabama, 1876, § 2822, under which Vancleave v. Wilson, supra, was determined.

Rush & Gardner, for the appellee.

1. The deed was invalid, for the reason that the same was not signed by the wife. The fact that the husband, in consequence of having wrongfully driven her from home, was not actually living with her, in nowise relieves the difficulty. The statute will be liberally construed for the benefit of the wife and child. Waples on Homestead and Exemption, pp. 6, 391. Keyes v. Scanlan, 63 Wis. 345; Barker v. Dalton, 28 Wis. 385; Lamb v. Wogan, 27 Neb., 236; 9 Am. & Eng. Enc. L., p. 781; 60 Tex., 633; 54 Tex., 201; 10 Minn. 458. The case of Gray v. Wilson, 59 Miss. 527, relied on by the appellants, is not pertinent to the facts of this case. There the intention was to change the residence, which the court said could be done, but in that case it was remarked that if the sale of the homestead was made by the husband to effect the change of residence, "and not as a device to evade the legal requirement of his wife's joinder, the fact that it was made before his actual removal from the land did not make invalid the conveyance that would have been valid, if made after the abandonment occurred."

2. The right of the appellee to maintain the bill filed by her is unquestionable upon authority. Waples on Homestead and Exemption, pp. 688, 689; 41 Tex., 647; 66 Ill. 169; 31 Ill. 13; Wisner v. Fornham, 2 Mich. 472; Mix v. Kretz, 5 Ill. 434; 16 Ill. 145; Helm v. Helm, 11 Kan. 21. The case of Vancleave v. Wilson, 73 Ala. 389, cited by appellant, turned on the question of notice. In this case the purchaser is alleged to have had full notice.

OPINION

COOPER, C. J.

The bill in this cause charges, and the demurrer admits, that the defendant, Scott, without cause or provocation, drove his wife, the complainant, from his home and refused to permit her to return. The first...