Wright v. Coleman

• Decision Date: 02 February 1925
• Docket Number: 24416
• Citation: 102 So. 774,137 Miss. 699
• Court: Mississippi Supreme Court
• Parties: WRIGHT et al. v. COLEMAN. [*]

102 So. 774

137 Miss. 699

WRIGHT et al. v. COLEMAN. ^[*]

No. 24416

Supreme Court of Mississippi

February 2, 1925

Division A

1 PARTITION. Court could not order sale of homestead of widow more than sixty years of age who had moved from premises, but was being supported in part from products.

Under Hemingway's Code, section 1821, and Code 1906, section 1659 (Hemingway's Code, section 1391), court could not order sale of homestead over objection of surviving widow who was more than sixty years of age, and had moved from premises because of infirmities of old age, where products thereof were utilized in her support and maintenance.

2 EQUITY. Complainant held not entitled to relief on theory other than that pleaded.

Daughter having brought suit against mother and other children on theory that she was entitled, as a matter of law, to a reasonable allowance for the support and maintenance of the mother, and that equity had jurisdiction to fix amount of allowance and make it a charge against the interests of such defendants as tenants in common of the homestead, or a charge against undivided interest of mother, could not recover on theory that she was entitled to allowance because of award of arbitrators.

3. PARENT AND CHILD. No legal obligation on adult child to support needy parent, or on parent to support adult child, at common law.

Under the common law, there is no legal obligation resting on the adult child to support needy parent, or on parent to support adult child.

4. WORK AND LABOR. Services of adult child for parent, or of parent for adult child, presumed gratuitous at common law.

At common law, services of adult child for needy parent, or of parent for adult child, are presumed to be gratuitous.

5. PARENT AND CHILD. Generally adult child cannot sue parent who is a member of his household for support and maintenance, in the absence of contract.

Generally, an adult child cannot sue parent who is a member of his household for support and maintenance, in the absence of an express or implied contract.

6. CONTRIBUTION. Equity could not compel contribution from other children or parent to adult child who supported parent, in absence of contract.

Where adult child supported needy parent, equity could not fix amount necessary for support and compel contribution from the parent or the other children by imposing lien on property of parent or other children for payment of sum so fixed, in absence of express or implied contract on part of parent or other children to pay for such support.

HON. T. P. GUYTON, Chancellor.

APPEAL from chancery court of Leake county, HON. T. P. GUYTON, Chancellor.

Bill by Mrs. Lula Wright Coleman against R. P. Wright and others. Decree for complainant, and defendants appeal. Decree reversed, and bill dismissed.

Decree reversed, and bill of complaint dismissed.

Wells, Stevens & Jones, for appellants.

It is perfectly manifest from the record that ill feeling exists between the complainant in this case, and the defendants. It is all a family row. Mrs. Coleman, the only daughter, took charge of her mother in order to get possession of the home place, and have her husband rent it and use it. She has objected to the other children visiting Mrs. S. A. Wright, or having anything to do with her. The original bill is something new in the jurisprudence of this state. It is both an effort to have a partition of the home among the tenants in common and also an effort to appropriate the proceeds under a so-called arbitration agreement, reflected by Exhibits A. and B. to the original bill. When a demurrer was interposed and sustained to the original bill, the complainant then restated her case from first to last in an amended bill, and, in doing so, abandoned any relief predicated upon the arbitration.

It is certainly true that the aged grandmother has a moral claim at least against her children and grandchildren for loving attention. It appears that different members of the family had ministered to her so long as she was living in the home, and it further appears that so far as her financial condition was concerned, she was not a pauper, but had a home and some livestock, and was drawing some kind of a pension, the nature and amount of which the record does not disclose. But the amended bill undertakes to state a case showing that the widow had abandoned the homestead and had ceased to use or occupy the same, and for that reason it was subject to partition. The statute which we have shows that the homestead in charge of the widow is not subject to partition or sale.

Under the authority of Moody v. Moody, 86 Miss. 323; Stevens v. Wilbourn, 88 Miss. 514; Dickerson v. Lesley, 94 Miss. 627; Tally v. Tally, 108 Miss. 84, and Williams v. Williams, 111 Miss. 129, the court cannot partite or sell the homestead for division of proceeds "without her consent."

In Tally v. Tally, supra, the court sustained a bill in the nature of a bill of review, to set aside a decree ordering the homestead to be sold for partition, and this court upheld the relief in an opinion by the present Chief Justice, observing, among other things: "Since under section 1659 of the Code, the land cannot be sold without her consent, the decree ordering and confirming the sale thereof should be vacated and the original bill praying for the sale should be dismissed." There is no evidence of any consent whatever in this case. Although S. A. Wright, the widow, was a member of the household of the complainant and did not actually occupy the homestead, yet it affirmatively appears that she did not join in the original bill, but on the contrary is made a defendant, and we have the unusual spectacle of the adult daughter having personal charge of her aged mother, filing a suit against her mother while she is under the complainant's roof, seeking to dispose of the exempt homestead. The proceeding is in the face of our wise exemption law expressing the public policy of the state.

The pleadings and the testimony affirmatively show that the widow for fifteen years or more actually occupied the home until she became an invalid and very aged and was forced to leave through the necessity of having someone to nurse her. The day before she left, according to the testimony of J. C. Coleman, she, the widow turned the place over to him to manage and use as he thought best, and evidently as a part of the understanding that she was going into his household as a member of his family. The very next day, the 28th, she was carried to his home and Mr. Coleman took charge of the home and has been using it ever since. J. C. Coleman's use and possession, therefore, is the use and possession of the widow, and the latter, at least indirectly, is getting the benefit of the place, or, in other words, the homestead is being "used by the widow."

The amended bill recognizes the homestead, but by a species of confession and avoidance undertakes to allege that the homestead is not being used. We submit that the amended bill is demurrable on this point, because it shows on its face that the widow is approximately eighty years old and left the actual occupance under impelling circumstances, and that she turned the place over to her son-in-law, Mr. Coleman, under an arrangement whereby she was going to his home to live. The very arbitration agreement relied upon in the original bill shows that any support furnished by Mrs. Coleman would be in the nature of an advancement on the purchase price of the homestead, but that so long as the widow lived the arbitrators declared that she should manage the homestead, as she was mentally able to do so. Both under the arbitration agreement and under the allegations of the amended bill, the widow has certainly been using the homestead. Likewise, under the proof in this case, she is using the homestead. The homestead, therefore, is still the exempt property of the widow, and is not subject to partition, and the amended bill cannot be justified on any theory that this is a partition suit.

The arbitration agreement cannot justify the relief awarded. The prayer of the amended bill and the decree as rendered cannot be justified or predicated upon the alleged arbitration agreement. We say this, first, because the amended bill did not declare on the arbitration agreement, or in anywise refer thereto, or make the said agreement a part thereof. The complainant had a right to abandon her theory as put forth in the original bill and to re-state her case entirely by the amended bill. When a demurrer is exhibited to the original bill in equity and sustained, the complainant must re-state his case by an amended bill. It might be possible to write an amendment to the original bill in a way to make the original bill along with the amendment to constitute an amended bill. It would be unusual, but it might be possible. But in the case at bar, the pleader restated her case altogether and of course had a right to abandon the arbitration agreement as a predicate for the relief sought, and the amended bill must stand or fall as written. It is elementary that no relief can be granted which is not made the basis of relief in the bill, and also that all relief must respond to the bill and the prayer thereof.

Looking then to the amended bill, no right is based upon the arbitration agreement, and no prayer is drawn thereon.

In the second place, if the amended bill had referred to the arbitration agreement and relief upon it, the arbitration agreement if valid would speak for itself. Now, this arbitration agreement and award show upon their face that--"the matters in dispute submitted are these . . . the property of said Mrs. S. A. Wright to be disposed of for her support and for the arbitrators to say where she shall live." And then the...