Summary
In May v. May, 229 Miss. 97, 90 So.2d 169 (1956), this Court held that where the husband lost his right to occupy the premises, he lost his homestead right, also.
Summary of this case from Blackmon v. BlackmonOpinion
No. 40272.
November 5, 1956.
1. Homestead — husband and wife — husband denied interest in home — conveyance in consideration of wife's agreement not to prosecute pending divorce action — divested husband of any interest in property — mortgage payments — rentals — adjusted.
In suit by husband against former wife to establish his interest in home and for partition sale thereof, wherein former wife filed cross-bill claiming sole title, Supreme Court held that where husband had deeded his interest in homestead property to wife, in consideration of wife's agreement not to prosecute pending divorce action, and of her assumption of mortgage, deed validly divested husband of any interest in property, and wife who subsequently obtained Ohio divorce was entitled to property, but that husband, who had continued to occupy the homestead, as he had the right to do, following his wife's departure, could recover payments which he had made on mortgage prior to divorce, but husband would be liable to former wife for reasonable rental value of premises from and after date of divorce.
Headnote as approved by Hall, J.
APPEAL from the Chancery Court of Jackson County; L.K. McINTOSH, Chancellor.
Albert Sidney Johnston, Jr., Biloxi, for appellant.
I. A decree of divorce which does not purport to make such a partition of property between the husband and wife, or to adjust and settle their rights to property claimed by either, does not preclude a separate suit by either party for such a partition or for the restoration of such property held by the other spouse. If the deed recites a valuable consideration or a consideration other than the one arising directly or indirectly out of the marriage relation, it may be shown that the recited consideration was not in fact the real or true consideration and there was no valuable consideration or consideration other than the one arising out of the marriage relation. It is, therefore, not necessary that the petition charge fraud or mistake in the execution of the deed, or do more than aver that the estate was conveyed solely on account of the marriage relation and that the recited consideration was not the consideration paid, or was the one paid by the grantee spouse for another tract. Where a foreign divorce decree makes no disposition of the property, and contains no reference to the property rights of the parties, but is confined to a dissolution of the marriage tie, a divorced wife (or husband) is entitled to sue for a division of the property acquired as community property by the husband (or wife) prior to his (or her) obtaining the foreign divorce, * * * * *. 26 Am. Jur., Sec. 120 p. 746, et seq.
II. Under a statute not vesting jurisdiction in a court, on a trial of an action for divorce, to make a final disposition of property rights between the parties, a judgment granting a divorce in which no disposition is made or attempted to be made of certain property rights between the parties is not as to such rights res judicata, and the same are subject to determination in a subsequent action brought for that purpose. And this is true, certainly, where the property is without the jurisdiction of the court. 26 Am. Jur. 747.
III. The consideration for the deed from complainant to the defendant, admitted by both parties, and about which there is no conflict, was the marital relation, and that being upon the failure of such relationship, evidenced by the separation of the parties following the execution and delivery of the deed by complainant to the defendant, and which eventuated in a decree of divorce in favor of defendant by the Ohio Court, complainant was most certainly entitled to a restoration of his undivided one-half interest in the homestead property of the parties in Jackson County, Mississippi, described in the pleadings on file herein.
IV. A court of equity has the power and authority to fix and determine the respective interests of the parties, complainant and defendant, and decree and order a sale of said property.
V. The Chancery Court has jurisdiction to provide for equitable division of property accumulated by the joint efforts of husband and wife during marriage relationship.
VI. The Ohio divorce decree does not purport to make a partition of the property owned by complainant and defendant in Jackson County, Mississippi, and would be void if it did so, as it is well established that in divorce proceedings the courts of one state cannot, by their decree, directly affect the legal title to land situated in another state.
VII. By the weight of authority, if a deed between husband and wife recites a valuable consideration or a consideration other than the one arising directly or indirectly out of the marriage relation, it may be shown that the recited consideration was not in fact the real or true consideration and there was no valuable consideration; and it is not necessary to allege and charge fraud or mistake in the execution of the deed, or do more than aver that the homestead or other property was conveyed solely on account of the marriage relation and that the recited consideration was not the consideration paid.
VIII. Although the burden of showing that a deed was executed in consideration of marriage rests on the spouse suing for the restoration of the property after divorce of the parties, or for partition of said property, by sale thereof where it cannot be divided in kind, as is the case here, before this Court, complainant May has met such burden, and in fact the defendant admitted before the Court, of record, on cross-examination, that complainant was entitled to, and owned, an undivided one-half interest in the property involved in this suit, and claims that the divorce granted her for the Ohio Court deprived complainant of this right to contend for, and recover his, the complainant's interest in said property.
IX. The Chancellor has jurisdiction to grant a divorce and provide for the equitable division of property accumulated by the joint efforts of the husband and wife during the marriage relationship. Crosby v. Hatten, 213 Miss. 240, 56 So.2d 705; Gates v. Gates, 215 Miss. 298, 60 So.2d 778; Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624; Griffin v. Griffin, 207 Miss. 500, 542 So.2d 720, 19 A.L.R. 2d 1423; Hemphill v. Hemphill, 197 Miss. 783, 20 So.2d 79.
X. The question here is not what the rights of husband and wife are during marriage, but what those rights are after one of the parties, here the wife, has obtained a divorce from the other. If the defendant had brought suit for divorce in Mississippi, and obtained a decree of divorce, then surely the Court would have had jurisdiction to provide for an equitable division of the property between them, and the case is no different, since the Ohio divorce obtained by the defendant could not, and did not, effect the right of complainant to obtain such equitable division of the property accumulated by the joint efforts of the parties during their marriage, and the undisputed evidence before the Court below is that such property was acquired during their marriage by and through their joint efforts. And the law, and the evidence, being that in such circumstances, and on the facts of this cause, that complainant and defendant were, and are, each, entitled to show and prove their respective interests in such property, and have a division thereof, and a partition sale of said property, so that they, and each of them, may receive their just proportion in such property, complainant is, therefore, entitled to a reversal of the judgment and decree rendered herein against him, to a judgment or decree in his favor for his one-half of said property and the proceeds of the sale thereof; or, in the alternative, that the decree of the Chancery Court of Jackson County, Mississippi, may be reversed and the cause remanded to said Court for further proceedings, according to the law and the evidence.
Wadlington Corban, Biloxi, for appellee.
I. The warranty deed executed by Willie C. May dated May 19, 1953, but acknowledged June 1, 1953, is a valid binding deed whereby Willie C. May conveyed to the appellee here the land in question.
II. The consideration for the deed was sufficient and in no way contravened public policy but in fact was given with the commendable view in mind of possibly saving a marriage that was at that time ruptured.
III. After the execution of the above-mentioned deed, Willie C. May, had no interest, legal or equitable, in the title to the above-described land but had only a veto power against the sale of same so long as he continued to occupy the property and was the legal husband of the appellee, Mary Renfro May.
IV. The record shows nothing from the time of their deed up to this date which would entitle him to have a court of equity declare him to be the owner of a one-half interest in the land, or of an owner of any interest in the land which could be set aside to him.
V. His right of occupancy was finally terminated by the decree of the Court in Ohio granting a divorce to Mary Renfro May, the appellee herein, which final decree is shown at pages 138-142 of the record.
VI. The findings of the Chancellor in the Court below are not contrary to the weight of the evidence.
Collation of authorities: Gates v. Gates, 215 Miss. 298, 60 So.2d 778; Hemphill v. Hemphill, 197 Miss. 783, 20 So.2d 79; Williams v. Green, 128 Miss. 446, 91 So. 39; Burnett v. Smith, 93 Miss. 566, 47 So. 117.
The parties hereto were married to each other in 1925 and as a result of said marriage they had two children, both of whom are now adults and are married. Their marital life was not pleasant and in May 1953 the appellee filed a suit for divorce and alimony and attorneys fees against the appellant in the Chancery Court of Jackson County, Mississippi. At that time they owned a house and lot in the City of Ocean Springs, Mississippi, which had been bought with their joint funds in 1945, the deed thereto being made to both parties in equal share, and a deed of trust was executed by them to secure a balance due on the purchase price. Upon learning of appellee's intention to file the suit the appellant requested her to withhold prosecution of the suit and agreed with her that if she would drop the case he would convey to her his entire interest in the property. The bill for divorce had been signed and the affidavit thereto executed on May 12, 1953, and it had been filed on May 14, 1953, and the appellant was served with summons therein on May 18, 1953. On May 19, 1953, the parties agreed that the suit would not be prosecuted and in consideration of this agreement the appellant executed to the appellee a warranty deed to his interest in said property, it being provided in the deed that she would assume the payment of the deed of trust on the property. Shortly thereafter this deed was placed of record. The suit was not prosecuted and was finally dismissed without prejudice.
The parties resumed the marital relation and the appellee went on a short visit to their son in Illinois. Thereafter she returned home and resumed residence with the appellant and later, about the end of July, she left and went back to Chicago where she spent two days with her son and then she went to Cleveland, Ohio, where she has continuously since resided. In the intervening time she made four visits back to Ocean Springs and stayed two or three days at a time, and on the last visit she told appellant that she was going to get a divorce from him. A final decree of divorce was granted in Cleveland, Ohio, on November 28, 1955, but after the filing of the Ohio suit and before the entry of the final decree the appellant brought suit in the Chancery Court of Jackson County, Mississippi, to establish his interest in the home and for a partition sale thereof. An answer and cross bill was filed by the appellee in which she set up the fact to be that a final divorce was granted to her in Ohio and a copy of the decree of November 28, 1955, was attached as an exhibit. She denied that the appellant has any interest in the property in question and averred the fact to be that he had continued in possession of the property since the separation. She admitted that he had a veto interest in the sale of the property until the divorce decree was entered, and she admitted that he had continued to make the monthly payments on the mortgage, which according to the proof amounted to a total of $1,181.28, which amount covers not only the principal but also the interest and taxes and insurance. In the cross bill she asked for possession of the property. The special chancellor held that the appellant has no interest in the property, that his deed to the appellee was valid, that the appellant's homestead right has disappeared and that the appellee is entitled to the possession of the property, and that the appellant was not entitled to recover any of the payments made by him on the deed of trust during the time he occupied the property as the husband. At the trial both parties testified that the original conveyance of the property by appellant to appellee was in the nature of a property settlement in consideration of the attempt to preserve the marriage.
In the case of Burnett v. Smith, 93 Miss. 566 (572), 47 So. 117, we held that "a man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice."
In the case of Williams v. Green, 128 Miss. 446, 91 So. 39, we held that a husband may make a valid deed to his wife to the homestead, without her signature, and that such deed will convey the title, but will not defeat the husband's right to occupy it as a home, and, as the law requires his consent to his wife's alienation of the homestead, his right to the homestead can not be impaired so long as the place is used as a homestead. Of course, when the parties are divorced the husband no longer has the right to occupy the property as a homestead.
(Hn 1) We think that these authorities as well as what was said in Hemphill v. Hemphill, 197 Miss. 783, 20 So.2d 79, afford ample support for the chancellor's decree, adjudging appellee to be sole owner of the property and awarding possession thereof to appellee, and the decree in that respect is affirmed.
This brings us to the question whether the appellant is entitled to recover from the appellee the payments which he made on the note and deed of trust in the sum of $1,181.28. Under the deed which appellant executed to the appellee on May 19, 1953, it was specifically provided that the appellee assumed and promised to pay the note and deed of trust on said property, which note and deed of trust had been executed by both of the parties. After the separation the appellee moved to Ohio, as above stated, and the appellant continued to live in and occupy the property. So long as they continued to be husband and wife the appellant was entitled to occupy the property as a homestead. In fact, he filed application for and obtained exemption of the property as a homestead. The undisputed proof is that he paid on the indebtedness the total sum of $1,181.28, for which he sought recovery in this suit. The chancellor denied recovery for this amount on the ground that the rent on the property was worth as much as the appellant paid on the indebtedness. The point which the chancellor overlooked was that while the parties remained husband and wife, he did not owe her any rent on the property which he was occupying as a homestead. It is true that he had joined in the note and deed of trust with her which had been given to the bank prior to their separation, but it is also true that she had assumed full payment thereof so as to relieve him, as between the parties, of any further liability to make the payments to the bank. We are accordingly of the opinion that the appellant is entitled to recover a judgment against the appellee for the said sum of $1,181.28, and the decree refusing to award the same is reversed in that respect and judgment will be here entered in favor of the appellant and against the appellee for said sum.
If the appellant is still in possession of the property, he is liable to the appellee for the reasonable rental value thereof from and after the date of the divorce decree, and the cause will be remanded to the lower court for a determination thereof, as well as for any other proceedings not in conflict with this opinion.
Affirmed in part, reversed and judgment here in part, and remanded.
McGehee, C.J., and Kyle, Holmes and Gillespie, JJ., concur.