Woods v. Bowles

• Court: Mississippi Supreme Court
• Writing for the Court: MAYES, J.
• Citation: Woods v. Bowles, 92 Miss. 843, 46 So. 414 (Miss. 1908)
• Decision Date: 18 May 1908
• Docket Number: 13,345
• Parties: PINK WOOD ET AL. v. FRANK N. BOWLES

46 So. 414

92 Miss. 843

PINK WOOD ET AL. v. FRANK N. BOWLES

No. 13,345

Supreme Court of Mississippi

May 18, 1908

FROM the chancery court of Leflore county, HON. PERCY BELL Chancellor.

Bowles appellee, was complainant in the court below, and Mrs. Woods and others, appellants, were defendants there. From an interlocutory decree overruling their demurrer to the complainant's bill the defendants appealed to the supreme court.

In a former suit for partition of land owned by appellee, and appellants as tenants in common, Bowles, appellee, was decreed to be indebted to certain of the present appellants his co-tenants, in a large sum for rents chargeable against him because of his occupation of the land and retention of its revenues. Partition of the land among appellee and appellants was decreed in said former suit, a decision which is reported, Bowles et al. v. Wood, 90 Miss. 742, 44 So. 169. On November 7, 1907, in said partition suit, the chancery court after correcting the amount of the indebtedness due by Bowles to the appellants to whom he was adjudged to be indebted so as to conform to the judgment of the supreme court in the case, decreed such indebtedness to be a lien in favor of said appellants upon the share of land set apart in severalty to Bowles, the decree reciting that such lien should relate back to the year 1897, the date of the institution of the suit, and that, in case of Bowles' default in satisfying the sums due from him within thirty days from date of the decree, his share of the land should be sold by a commissioner. Default was made by Bowles, and the commissioner advertised the land for sale. To prevent the sale Bowles brought this suit and obtained a preliminary injunction against the appellants. His bill charged the foregoing facts, and further charged that on November 6 1907, the day before rendition of the aforesaid decree, he married, and on November 11, 1907, he and his bride moved upon the land and continuously thereafter have occupied it as their homestead; that the land is less than one hundred and sixty acres, the maximum statutory homestead extent of area and worth less than $ 3,000, the maximum limit of a homestead; and, although unable to pay the amount decreed to be due by him to appellants, appellee claimed that under the circumstances, his share of the partited land could not be subjected to the payment of his indebtedness to appellants.

Affirmed.

Gwin & Mounger, for appellants.

The learned chancellor erred in holding that the mutual demands of tenants in common for improvements and rents constituted merely simple debts of no higher degree than simple accounts or other personal and unsecured obligation.

The equitable lien of one tenant in common on the interest of fire other tenants in common in the property, for indebtedness arising on account of improvements, discharge of incumbrance, payment of taxes, and receipts of rents or profits, arises primarily out of the relation of the parties to each other and to the common property. It exists independently of statute law. 3 Pomeroy Eq. Jur., § 1234; 1 Jones on Liens, § 28; 25 Cyc., 660.

Such lien is entitled to the same consideration, and is entitled to bind the common property as efficiently, as any statutory lien. Sinclair v. Sinclair, 79 Va. 40; 19 Am. & Eng. Ency. of Law (2d ed.), 20, b.

In most of the states it is held that the lien arises per se from the occupancy of a part of the common property in excess of the tenant's proportionate share, and is created by implication from the voluntary act of the tenant in common who, in occupying the premises or receiving the rents from more than his share, does so with the implied understanding that he is creating such lien in favor of the other tenants in common. Kingsland v. Chetwood, 39 Hun (N. Y.) 602; Scott v. Guernsey, 60 Barb. (N. Y.), 163; Beck v. Kallmeyer, 42 Mo. App., 563; Medford v. Frazier, 58 Miss. 241; Burns v. Dreyfus, 69 Miss. 211, 11 So. 107; Walker v. Williams, 84 Miss. 392, 31 So. 450; Bennett v. Bennett, 84 Miss. 501, 36 So. 452; Austin v. Barber, 88 Miss. 553, 41 So. 265.

Can this well-established principle of law be disregarded and the lien be declared invalid, merely in order to allow to one tenant in common a homestead exemption in the common property in derogation of the rights of the other tenants in common? The authorities would seem to indicate to the contrary. See McGrath v. Sinclair, 55 Miss. 89; Lewis v. White, 69 Miss. 352, 13 So. 349, 30 Am. St. Rep., 557; Ferguson v. Speith, 13 Mont. 487.

It is hardly necessary to cite authority to support the self evident proposition that one cannot assert a homestead exemption in land which is, in whole or in part, another's against the title of such other. As against creditors the occupying tenant in common cannot claim a floating exemption in the whole estate equal to his undivided interest therein. Lewis v. White, supra; Chapman v. Machine Co., 78 Miss. 438, 28 So. 735; Kenoye v. Brown, 82 Miss. 607, 35 So. 163.

Appellee is under the erroneous impression that he acquired some extraordinary right by marrying on the day before the final decree was rendered and by occupying as a homestead his allotted share after the decree was rendered but before the date of the sale provided for in the decree. And, in support of the same, he relies on the case of Trotter v Dobbs, 38 Miss. 198. But in that case execution had been levied on the property of the debtor, an unmarried man, and a sale advertised under the levy. On the day of sale, but before the sale took place, the judgment debtor, already in occupancy of the land, married and thereby qualified as an exemptionist at the time of the sale. It was held that as against his exemption the sale was void, not because he had qualified as an exemptionist after the levy, but because he was a qualified exemptionist at the time of the sale. The result would have been the same if his marriage and occupancy related back to the time preceding the rendition of the judgment as was the case in Jones v. Hart, 62 Miss. 13. The consideration of the debt upon which judgment was rendered, and under which execution was issued, in the case of Trotter v. Dobbs, supra, arose from the relation merely of creditor and debtor in a contract matter. The consideration of the obligation of appellee, Bowles, in the instant case arose from the relation of the tenants in common in dealings in regard to the common estate, and was created by the well settled principles of equity. If a homestead exemption cannot be asserted in partnership real estate by any member of the partnership, even in case where as a result of the death of one partner and dissolution of the partnership the title has descended to the survivor, as in Robertshaw v. Hanway, 52 Miss. 713; and if an attorney's lien may be recognized and enforced upon a specific fund even as...