Opinion
No. 30100.
September 26, 1932.
APPEAL AND ERROR.
In suit to cancel trust deed, chancellor's decree for defendants, based on finding on conflicting evidence that plaintiff never occupied land involved as homestead, as claimed, must be upheld, where there was sufficient evidence sustaining it.
APPEAL from chancery court of Simpson county. HON. T. PRICE DALE, Chancellor.
W.M. Lofton, of Mendenhall, for appellants.
The court erred in rendering a decree in favor of the appellees in the debt issue in this case for the reason that said appellees failed to make proof of the same by competent evidence.
For books to be competent as evidence, they must be shown to have been correctly kept. They must also be shown to be the books of original entry.
Pipes v. Norton, 47 Miss. 61; Broach et al. v. Wortheimer-Swartz Shoe Co., 21 So. 300; Hauenstein et al. v. Gillespie, 19 So. 673.
The deed of trust executed by S.D. Burns on the twenty-one and three-fourth acres of land was void, because it was his homestead and his wife did not join with him in executing the same.
The court is not left in doubt as the testimony conclusively shows that S.D. Burns only owns the twenty-one and three-fourth acres of land and that it is his home.
Hinds v. Morgan et al., 75 Miss. 509, 23 So. 35; Gilmore v. Brown, 93 Miss. 63, 46 So. 840.
The homestead exemption statute was not enacted for the benefit of the husband and father, but it was done for the purpose of affording shelter to the wife and the innocent and helpless children. If the husband and father can thus evade the effect of the statute that requires that his wife join with him in executing a deed of trust or deed of conveyance to the homestead, by inserting a clause in said instrument to the effect that it is no part of his homestead and if the courts will enforce the provisions of such an instrument when in truth and in fact it is his homestead, then our exemption statute would be worth absolutely nothing. This court has held that a deed through the husband alone is void.
Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 48 So. 516; Johnson v. Hunt, 79 Miss. 639, 31 So. 205.
If this court upon final consideration should find that the appellant, S.D. Burns still owes Horn Brothers any sum whatever, then as a matter of course no cancellation of the legal obligation could be made by this court. But this testimony conclusively shows that this twenty-one and three-fourth acres of land was the homestead of S.D. Burns, and that being true the deed of trust as to that land was void because of the failure of his wife to join with him in executing it. Then without cancelling any claims of indebtedness, this court will grant the petition of the said S.D. Burns and set apart to him the twenty-one and three-fourth acres of land as his homestead and therefore exempt from seizure under execution, and this court will at least reverse the decree of the lower court and modify it so as to allow him his said claim for exemption.
R.C. Russell, of Mendenhall, for appellees.
It is our contention that under the pleadings in this case, as well as the proof offered, that appellees were not required to make any discovery of any item or matter prior to the giving said note and deed of trust, but notwithstanding that we filed a complete itemized account of all transactions before and after the giving of the note and deed of trust, but when we did so, that did not shift the burden of proof from appellants to appellees.
The burden of proof rests on the party seeking to reopen an account upon which payments had been made, etc., by direct and specific evidence. It is not sufficient to raise a suspicion that the account is incorrect in certain particulars, but facts must be shown in the light of which the court may act with confidence and intelligence.
Clayton v. Boyce, 62 Miss. 390; Dickerson v. Thomas, 67 Miss. 777, 7 So. 503; Abraham v. McCurdy, 15 So. 137.
Upon the trial of this case the court, after hearing all the testimony found, as a matter of fact, and so decreed that the twenty-one and three-fourth acres was not the homestead of S.D. Burns at the time of the giving of said deed of trust.
Before any parcel of land can be impressed as a homestead, it must first be actually occupied as such by the one claiming it, not by proxy and this testimony shows that S.D. Burns' family never occupied this twenty-one and three-fourth acres.
Chrismand v. Mauldin, 94 So. 1, 130 Miss. 251; Young v. Ashley et al., 86 So. 458; McDonald et al. v. Sanford, 41 So. 369; 133 So. 149.
An exemptionist who fails to assert his exemption in the chancery proceeding fully adjudicating his right cannot afterwards claim it against a purchaser under the decree.
Richie v. Duke, 79 Miss. 66, 12 So. 208; Rutherford v. Jamieson, 65 Miss. 219, 3 So. 412; Henderson v. Still, 61 Miss. 391.
Argued orally by William Lofton for appellant, and R.C. Russell, for appellee.
The appellant filed suit in the chancery court of Simpson county to cancel a deed of trust and trustee's deed made to certain property conveyed in a deed of trust by S.D. Burns and his mother, M.J. Burns, to Horn Brothers, to secure a certain indebtedness, it being alleged in the declaration that twenty-one and three-fourths acres so conveyed in the deed of trust constituted the homestead of S.D. Burns, and that his wife had not joined in said deed of trust, consequently the deed of trust and trustee's deed were void as to the twenty-one and three-fourths acres.
It appears, from conflicting testimony, that Burns and his wife were actually living, at the time of the execution of the deed of trust, upon other property than the premises conveyed in the deed of trust.
In the deed of trust introduced in evidence there appears the following: "I, S.D. Burns, certify that no part of the above described lands is any part of my homestead exemptions." Burns testified that this clause was not in the deed of trust at the time he signed it, and it was testified to for the defendants that it was in the deed of trust at the time of its execution.
The testimony for the plaintiff tended to show that a portion of the time he stayed with his mother who owned fifty acres of land adjoining the twenty-one and three-fourths acres, and that he used the twenty-one and three-fourths acres either by cultivating it himself, or by leasing it to others; and that, at the time of executing the deed of trust, he was living with his mother and the deed of trust was executed at her place and signed by her and the plaintiff S.D. Burns.
The testimony for the defendant was to the effect that Burns did not live upon the premises involved at the time of the execution of the deed of trust, but was living, with his family, at another place at said time, and there was testimony to the effect that he had never lived upon the twenty-one and three-fourths acres embraced in the deed of trust.
In view of this conflict of evidence, we think it was for the chancellor to find out which testimony was true, and, as sufficient evidence was had to warrant the chancellor in finding that the plaintiff had never occupied the land as a homestead, his decree will have to be sustained, regardless of the legal effect of the clause above quoted that the property was not a homestead at the time of the execution of the deed of trust.
As we view the record, it presents simply a conflict of evidence, and the chancellor's decree must be upheld, because there is sufficient evidence to sustain it.
Affirmed.