Ward v. Ward

• Citation: 517 So.2d 571
• Decision Date: 16 December 1987
• Docket Number: No. 57717,57717
• Court: Mississippi Supreme Court
• Parties: Wayne M. WARD and Joyce McCauley v. Wendell WARD and Emma Ward.

Page 571

517 So.2d 571

Wayne M. WARD and Joyce McCauley v. Wendell WARD and Emma Ward.

No. 57717.

Supreme Court of Mississippi.

Dec. 16, 1987.

Jerry O. Terry, Greaves, Terry & Sheely, Gulfport, for appellants.

Crockett Lindsey, Lindsey & Wood, Gulfport, for appellees.

Before HAWKINS, P.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

When Chancellor William L. Stewart of the First Judicial District of Harrison County, Mississippi, granted Wendell and Emma Ward's motion for summary judgment, he affirmed as a valid conveyance to Wendell and Emma Ward, a deed from Jesse M. Ward dated March 11, 1982.

In 1965 Jesse M. Ward had taken one Amelia Brent to be his wife and had occupied the property in question with Amelia as their homestead. On May 13, 1971, Amelia gave a quitclaim deed to Jesse which described the grant as "all my right, title and interest that I have or may have in the future" and this "includes any homestead rights." This deed was not recorded until September 26, 1985, after the death of Jesse Ward.

However, on March 11, 1982, Jesse executed and delivered to Wendell and Emma Ward a warranty deed describing the same property, subject to the reservation of a life estate. Amelia did not sign this deed. Furthermore, this deed was not recorded until September 4, 1985.

Jesse and Amelia continuously lived on the property and without deference to the execution of the 1971 or 1982 deeds, continued to file declarations of homestead. The last homestead declaration was made with the Harrison County Tax Assessor on January 17, 1985.

Jesse Ward died on September 3, 1985, leaving Amelia, his widow, and Wendell, Wayne and Joyce, his surviving children. After Jesse's death, Amelia's quitclaim deed of fourteen (14) years earlier was recorded; Jesse's deed of three (3) years earlier to Wendell and Emma was recorded; and new instruments, a quitclaim from Amelia to Wendell and Emma was executed and recorded, and an affidavit of Amelia was recorded stating that the deed from Jesse to Wendell and Emma was in fact delivered on March 11, 1982.

Wayne Ward and Joyce Ward McCauley filed their complaint to cancel the deed of March 11, 1982, from Jesse to Wendell and Emma Ward. The basis of their complaint is the prohibition set forth in Section 89-1-29, Mississippi Code Annotated (Supp.1986). It is their contention that since the property was occupied and declared to be the homestead of Jesse and Amelia and since Amelia did not join in the conveyance, the conveyance was invalid.

The chancellor granted summary judgment finding that a wife can make a valid deed conveying her homestead to her husband or can completely abandon her homestead rights at any time. Further, the chancellor found that by Amelia's deed of May 17, 1971, Jesse Ward received all of Amelia's title to the property, "unencumbered by any right of homestead." In his findings the chancellor relied upon Smith v. Stanley, 159 Miss. 720, 132 So. 452 (1931), and Williams v. Green, 128 Miss. 446, 91 So. 39 (1922).

The chancellor entered the summary judgment incorrectly and improperly relied on the cases of Williams v. Green, supra, and Smith v. Stanley supra. Standing alone Williams v. Green and Smith v. Stanley do serve as authority in upholding the validation of the quitclaim deed executed by Amelia to Jesse. However, they are not authority for the proposition that the provisions of Section 89-1-29, Mississippi Code Annotated (1972), are therefore inapplicable to Jesse's deed of March 11, 1982, in which he tried to convey the property to Wendell and Emma Ward.

While Section 89-1-29, Mississippi Code Annotated (1972), does not give the wife any property right or ownership, it does give her at least a veto power. Scott v. Scott, 73 Miss. 575, 19 So. 589 (1896); and Duncan v. Moore, 67 Miss. 136, 7 So. 221 (1890).

In Gatti v. New Orleans Railway & Mill--Supply Co., 77 Miss. 754, 27 So. 601 (1900), this Court held that a woman who had no title to her husband's property may convey to him all her right or interest in this homestead property. It was not until 27 years later in Williams v. Green, 128 Miss. 446, 91 So. 39 (1922), that this Court dropped the other shoe and held that thereafter a husband may not circumvent the statute and convey the homestead to a third party without the wife's signature.

Mississippi Code Annotated, Sec. 89-1-29 (Supp.1986), states in pertinent part:

A conveyance, mortgage, deed of trust or other encumbrance upon a homestead exempted from execution shall not be valid or binding unless signed by the spouse of the owner if the owner be married and living with the spouse....

Therefore the statute mandates that any conveyance of that homestead without the joinder of both spouses is invalid. We have consistently held that such a conveyance is null and void "as to both the husband and wife." Hughes v. Hahn, 209 Miss. 293, 46 So.2d 587, 589 (1950). See also, Goodwin v. McMurphy, 435 So.2d 639 (Miss.1983); Stockett v. Stockett, 337 So.2d 1237 (Miss.1976); Gilmer v. Freeman, 336 So.2d 717 (Miss.1976); Hendry v. Hendry, 300 So.2d 147 (Miss.1974).

The issue is not whether the husband...