Tanner v. Tanner

• Decision Date: 15 May 1916
• Docket Number: 17926
• Citation: 71 So. 749,111 Miss. 460
• Court: Mississippi Supreme Court
• Parties: TANNER v. TANNER ET AL

71 So. 749

111 Miss. 460

TANNER v. TANNER ET AL

No. 17926

Supreme Court of Mississippi

May 15, 1916

APPEAL from the chancery court of Montgomery county, HON. D. M KIMBROUGH, Chancellor.

Suit by Mrs. Mary J. Tanner and others against S. L. Tanner. From a decree for petitioners, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Flowers Brown, Chambers & Cooper, for appellant.

Since the filing of the brief for appellant in this cause this court has decided the case of Mounger v. Gandy, 69 So. 817, found in the advance sheets of November 27, 1915.

This case and the principle announced is practically decisive of the case at bar. In the case at bar there had never been any residence on the forty-acre woodland tract. It was situated three-quarters of a mile from the tract which was the homestead fourteen or fifteen years before. The residence of the grantor was on the land of his daughter and was never on the forty acres in question.

We can do no better than quote from the opinion of Judge Stavens in the Mounger case: "Homestead laws are liberally construed in favor of the exemptionist, but never as a pretext to claim that which does not really and substantially exist. All the many liberal opinions of the court on this subject are vitalized by the principle, well expressed by Tarbell, J., in Campbell v. Adair, 45 Miss. 170, in the following language:

"'One of the leading objects of these statutes is to create preserve, and protect a home for the family, for the wife, mother and children, as well as for the husband and father. A characteristic feature of home is a place of residence of which occupancy is an essential element. As a general rule, to constitute a homestead there must be appropriated, dedicated or used for the purpose designated by the law, to wit, as a home, a place to abide and reside on, a home for the family.'"

W. R. S. Wilburn, for appellees.

It is the policy of the laws of Mississippi, as stated by counsel, to encourage home buildings, and this policy is continually being broadened. Exemption laws are to be liberally construed, as stated by Judge Mayes in the case of Zukoski v. McIntire, 93 Miss. 811.

Courts will not be on the alert to defeat the assertion of those rights. Whenever there is a serious doubt as to whether or not property is, or is not a homestead, the doubt should be solved in favor of the exemptionists, sustaining, instead of defeating the estate which is created by a sound legal policy.

The record in this case shows that the forty-acre tract was used by J. T. Tanner off of which to get fire wood. See the testimony of G. R. Joiner, page 34; and as also shown by the testimony of R. B. Powers, on page 43, and at page 44, near the end of the page. This court has been very jealous in upholding the rights of an exemptionist, and in construing all things in favor of the exemptionist, as is clearly shown by the case hereinbefore referred to, and is also shown by the case of King v. Struges, 56 Miss. 606, or Graft v. St. Clair, 55 Miss. 89, which are quoted by counsel.

The homestead does not have to be in one body; detached parcels of land can and do constitute a homestead, 56 Miss. 30, and 65 Miss. 439, 73 Miss. 382.

In the 46th New Hampshire, page 43 it was held that a small piece of land off of which hay was cut for a cow, kept at the home where a man lives, may be regarded as a part of his homestead, though the land is separate from the house and a mile distant.

In the 93 Texas, 279, the court held that a lot in a town, one-half a mile distant from the residence upon which vegetables were grown for the use of the family, was held as exempt. In the 67th North Carolina, 293, the court held that two tracts of land three miles distant from each other were a part of the homestead and exempt.

In the case of Bothell v. Street, 6 Atlantic Reporter, 646, the facts show that a mortgage was given on a woods lot. The court held the mortgage void, and that the woods lot was a part of the homestead, although separate.

The case in 62nd Missouri (I read this case in the State Library and failed to make a notation of the page) is strongly in point. In this case the court says: "Under the statute homestead is defined as a dwelling house and appurtenances and the land used in connection therewith. But continuity does not seem to enter into our statutory definition. It frequently happens that . . . a farm is dependent upon a piece of woodland several miles distant, and both may constitute a homestead.

I deem it idle to cite further cases setting forth the doctrine that the homestead right of exemption is to be liberally construed, or that detached parcels of land may constitute a homestead.

OPINION

POTTER, J.

This was a suit filed in the chancery court of Montgomery county by Mrs. Mary J. Tanner, Mrs. Hessie Bailey, and Mrs. Evaline Hawkins against S. L. Tanner, all the parties to the suit both complainants and defendants, being the heirs at law of J. T. Tanner, deceased. The bill of complaint alleged that complainants were the owners and tenants in common of one hundred and sixty acres of land in Montgomery county, and described the lands. The bill alleged that Mrs. Mary J. Tanner owned an undivided one-fourth interest in the property described, Mrs. Evalina Hawkins an undivided one-fourth interest, and Mrs. Hessie Bailey an undivided one-fourth interest in said lands, and the defendant a like interest, and that the lands described comprised the homestead of J. T. Tanner, the husband of Mrs. Mary J. Tanner and the father of the other complainants and defendant; that J. T. Tanner died intestate on the 9th day of January, 1911, leaving the lands described in the bill of complaint as his only real property; and that it was the desire of the widow, Mrs. Mary J. Tanner, that the said lands be partitioned. The bill then averred that on the 3d day of May, 1902, J. T. Tanner attempted to convey, and did execute, a deed, in consideration of one dollar and love and affection, to the defendant, S. L. Tanner, to the land described in the bill of complaint as the northeast quarter of the northeast quarter, section 1, township 17, range 7 east, and that Mrs. Mary J. Tanner, the wife of J. T. Tanner, deceased, did not join in said conveyance to the defendant, and that she did not know the deed to said lands had been made until after the death of...