Opinion
No. 33200.
May 23, 1938.
1. HOMESTEAD.
The failure of grantor's wife to sign deed conveying all of timber on all of grantor's land without reserving any exemption made deed void as to a homestead (Code 1930, section 1761).
2. HOMESTEAD.
Where grantor, whose wife had not signed deed, had never made any homestead declaration and no homestead had even been designated or allotted in 424-acre tract, court improperly undertook to allot homestead in suit by grantee against grantor and his wife involving controversy over cutting of trees by grantee on grantor's alleged homestead, but court should have appointed commissioners to make allotment before adjudicating rights of parties (Code 1930, sections 1765, 1767, 1770, 1771).
3. HOMESTEAD.
Where grantor, whose wife had not signed deed, had never made any homestead declaration and no homestead had been designated or allotted in 424-acre tract as provided by statute, grantor and his wife, who thereafter set up homestead claim against grantee, could not be allowed to make selection of homestead in manner different from that prescribed by statute (Code 1930, sections 1765, 1767, 1770, 1771).
APPEAL from the chancery court of Grenada county. HON. L.A. SMITH, Chancellor.
Stone Stone, of Coffeeville, for appellant.
Here is presented to us what appears to be a monstrous proposition that a man can come into court against the grantee in his deed, and with no showing whatever of having withdrawn his consent that he cut the timber that he had sold him, and without any declaration of homestead, informal or otherwise, and get a judgment for the actual value and the statutory penalty for taking the very trees covered by his deed. He can get this by joining in his claim his wife who never has had a deed to the land and who is not the owner of the land and who has never, informally or otherwise, designated her homestead or brought home to the grantee in the deed any designation, informal or otherwise, of land that she claims as her homestead.
If we are to be denied the timber that we bought and paid for on the SW 1/4 of Section 29, then T.J. Spears and the rest of his land must answer to us for this timber denied.
Federal Land Bank of New Orleans v. Miles, 169 Miss. 43, 152 So. 472; Fuquay v. Jordan, 172 Miss. 11, 158 So. 795; Lewis v. Ladner, 168 So. 281.
We cannot see any reason whatever why the action of the Chancellor in allowing this $375 which was shown to be the value of the timber denied, should not be held good against not only T.J. Spears individually but against all of the four hundred and twenty-four-acre tract of land not claimed as a homestead, and we will not argue this proposition further unless perchance it be denied in the argument of our distinguished opponents.
While the legislature of 1924 might have justified in some possible cases the recovery of money value and statutory penalty, still nothing has ever come up in the decisions or in the Legislature that even slightly repudiates what has been written down for a hundred years in the law books of the State of Mississippi about statutory penalty, and we desire to measure this case up by the side of some of these opinions, some few of the many, and see if there is any justification whatever in the law and in the adjudications of Mississippi for what we consider this monstrous decision.
Bolingler-Frank Co. v. Tullus, 124 Miss. 855, 87 So. 486; Massey v. Womble, 69 Miss. 347, 11 So. 188; Therrell v. Ellis, 83 Miss. 494.
W.M. Mitchell, of Grenada, for appellees.
The deed made by J.T. Spears to the Bruce Company was absolutely void, insofar as it attempted to convey the timber on the homestead without the wife joining therein.
Rosenbaum v. Blackwell, 110 Miss. 452; Young v. Ashley, 123 Miss. 693; Federal Land Bank v. Miles, 169 Miss. 458.
Even where the wife is one of the grantees in the deed, it is void as to all except the wife, so far as the homestead is involved.
Chapman v. Poindexter, 101 Miss. 496.
Hence it is clear that these parties had the right to prohibit the complainant and his agents from going upon the homestead and cutting the timber thereon, and that when they ignored their notices not to do so, and cut said timber after receiving said notices, they became liable not only for the actual value of the timber so cut, but also for the statutory penalty of $15 per tree.
This is well settled in this state, and has been the law ever since the amendment of 1924 to the statute providing for penalties for cutting certain kinds of trees without the consent of the owners.
Section 3411, Code of 1930.
The fact that Spears had never made a statutory declaration of homestead makes no difference. Cowles Horton, of Grenada, for appellees.
It is true that Spears had not made a statutory declaration as to his homestead (Sec. 1767, Code 1930) but he and his wife and family "resided" thereon and he owned it. This is all that the law required.
Sec. 1765, Code of 1930.
The statute requires (Sec. 1778, Code 1930) that a conveyance of a homestead or any interest therein by the husband without the wife's signature "shall not be valid or binding." It is, in fact, a void, lifeless, useless act. It operates as nothing and does not even create an estoppel against the husband himself. This is the holding in all of the decisions.
Young v. Ashley, 123 Miss. 702; McDonald v. Sanford, 88 Miss. 633; Bolen v. Lilly, 85 Miss. 344; R.R. Co. v. Singleterry, 78 Miss. 772; McKenzie v. Shows, 70 Miss. 388.
For argument's sake we shall assume that prior to the notice not to cut on the homestead the deed from Spears might have operated as a license to the appellant but, if it did, that license was certainly revoked and extinguished after that notice was given.
Walton v. Lowrey, 74 Miss. 486; Blair v. Russell, 120 Miss. 108.
Appellant's cutting on the homestead was a trespass.
Appellant's deed to this timber was void. It conveyed nothing insofar as the homestead was concerned. Its entry on the homestead and cutting of timber thereon after the notices given by these parties was certainly a wilful one, or if not, then clearly an act which was negligent to the grossest degree. Under such circumstances the statute applies and under the statute the court could do no more than to adopt the arbitrary sum which the law fixed for the trees so cut.
Perkins v. Hackleman, 26 Miss. 41; Keirn v. Warfield, 60 Miss. 799; Crisler v. Ott, 72 Miss. 166; McCleary v. Anthony, 54 Miss. 708; Therrell v. Ellis, 83 Miss. 494; Walton v. Lowrey, 74 Miss. 486; Blair v. Russell, 120 Miss. 108.
The learned court below was not called upon to pass upon the subrogation features presented by the bill herein for the reason that appellant received credit for the $375 found to be due it against the sums which appellees otherwise would have recovered. No resort to any security, therefore, was necessary for the collection of this payment even if appellant was entitled to a refund to that amount.
Argued orally by W.I. Stone, for appellant, and by Cowles Horton and W.M. Mitchell, for appellees.
The appellant, the Robert G. Bruce Company, a corporation, filed its bill against the appellees, J.T. Spears and wife, Mrs. Lizzie Spears, by which it sought injunctive relief and recovery of a personal judgment against J.T. Spears. J.T. Spears and his wife answered, denying the material allegations of the bill, and denying that appellant was entitled to injunctive relief or to any personal money decree. They made their answer a cross-bill and sought to recover the value of certain timber alleged to have been cut from their homestead and also the statutory penalty for the cutting of trees on their homestead. The court below allowed the appellant a money decree against Spears for the amount claimed, and sustained the cross-bill of appellees allowing a recovery for the actual value of the timber cut from the homestead and likewise the statutory penalty, which amount exceeded the personal decree against Spears. A judgment over was awarded the appellees for the difference, from which decree appellant appeals.
The allegations of the bill are in substance as follows: On March 4, 1936, J.T. Spears executed a warranty deed to Robert G. Bruce Company to certain timber on the N.W. 1/4 of section 32, and W. 1/2 of section 29, except the N.E. 1/4 of the N.W. 1/4 of section 29, and except 16 acres off of the north end of the N.W. 1/4 of the N.W. 1/4 of section 29, all in township 23, range 7 east, Grenada county, Miss., containing 424 acres. The deed was exhibited with the bill, and the consideration recited was $1,200, which was alleged to have been paid. Mrs. Spears joined in the deed and conveyed certain lands as a part of the same consideration to appellant, but the lands so conveyed by her are not here in controversy. The purchase price of the timber was paid out in the main to satisfy an existing prior deed of trust on the 424 acres, and the balance was applied to the payment of taxes in default. The deed of trust was satisfied and was exhibited. As to these payments, the appellant alleged that, in the event the title to any part of the timber should fail for reasons hereinafter stated, it should be subrogated to the value of the timber lost to it by the failure of the title and should have a judgment imposing a lien on the balance of the land not included in the homestead for the payment thereof. Appellant had proceeded to procure a party to cut and remove the timber, and shortly after that time it received two notices, by mail or by hand, which advised appellant that Mrs. Lizzie Spears had not joined in the conveyance, and it was warned not to cut the timber on the homestead. The notices did not describe the homestead and were signed by Mrs. J.T. Spears. After these notices Spears and wife followed up by repeated arrests of parties working in the camp engaged in cutting and removing the timber, and by violent threats against the lives and safety of the people engaged in the removal of the timber. The appellees never advised appellant as to the particular lands they had in mind as exempt, but from the prosecuting witnesses appellant learned that the parties were claiming the southwest quarter of section 29. There had never been any allotment under the statute of any of the 424 acres as a homestead, and this was all the land the Spears owned. It was impossible for appellant to cut the timber under the threats and armed violence and menace presented by the appellees.
The bill further alleged that the appellant was entitled to remove the timber "in peace from the menace and threats of the appellees," and that the court should enjoin them from interfering with appellant or its employees and agents in their legal right to cut and remove the timber, but, if the court should find that it did not have the right to cut the timber, then it should recover $375 as the value of the timber on that quarter section. It further stated that appellant was entitled to be subrogated to the rights of the mortgagee in the deed of trust which had been paid off with the purchase price of the timber, and also to a judgment against J.T. Spears for the repayment of $375. It prayed for an injunction against the appellees to prevent them from interfering with the cutting and removing of the timber or for the value thereof as set forth, and for general relief.
The chancellor found that the timber in controversy on the southwest quarter of section 29 was located upon the homestead of the Spears, and that Mrs. Spears did not join with the husband in the deed, therefore, the Robert G. Bruce Company was entitled to recover $375 as the value of the timber not obtained by it. The chancellor further found that Spears and wife were entitled to recover $421.96, with interest, being the difference between the amount of $375 allowed appellant, and $47.59, the value of the timber cut, and $735, the statutory penalty for cutting said timber, allowed appellees, and denied injunctive relief.
The evidence shows that Spears and wife had lived on the southwest quarter of section 29 for about 22 years, and that title to the southwest quarter, as well as to the balance of the 424 acres, was in J.T. Spears, the wife had no title and only such claim as is vested in her on account of a homestead exemption. The lands were contiguous to each other, some of it being on the north side of the southwest quarter and the balance on the south side thereof. Spears had never made any homestead declaration in accordance with section 1767, Code of 1930, nor was there any designation of a homestead as permitted by section 1770, Code of 1930, nor allotment under section 1771, Code of 1930.
At the instance of Spears and wife the court below undertook to allot the homestead on the trial of the issue between these parties, and allowed appellant a decree for the value of the timber on the homestead. It is not shown whether the entire tract of 424 acres was owned all the time by Spears, or whether he acquired the land at different times. The house occupied by the Spears for many years was on the southwest quarter, and Spears was a citizen of the state and a householder thereof having a family. There was no binding effect upon the court or anyone else in the method of selection of a homestead by the wife which we will say was agreed to and assented to by the husband in the written notices served by Mrs. Spears, which did not describe any particular land claimed to be the homestead by her. As liberal as this court has always been in the construction of the homestead exemption laws for the protection of a wife and family against an improvident husband and father, it cannot be left either to the husband or wife, or both, in cases like the one at bar, to so conduct themselves as to leave it entirely with them as to what lands shall be exempt when the acreage exceeds the statutory amount — 160 acres in the country. Section 1765, Code of 1930. The southwest quarter here was 160 acres and did not exceed $3,000 in value.
When Spears made a warranty deed to all the timber on the entire 424 acres, which was all he owned, and reserved no exemption, of course the failure of the wife to sign that deed would make it void as to a homestead, as provided by section 1761, Code of 1930. But, these lands were in a compact tract — different subdivisions, but contiguous, and in such shape as that the exemptionist could have claimed, after the execution of the deed, lands in various locations. It might have been that he could have so arranged his claim to exemption if it could be thus interposed as to defeat the entire deed conveying all the timber on the entire tract of land, exempt or nonexempt. After the execution of the warranty deed by Spears to the appellant the latter became vitally interested and had a right to be legally advised as to the claim of a homestead. Neither Spears nor the court which tried the issue between these parties had the right to arbitrarily fix the allotment of the exempt homestead. The owner of the land should have asked the court by proper petition to have the homestead designated by law as provided for in section 1770, Code of 1930, and the court should have appointed commissioners to make this allotment in accordance with section 1771 and applicable sections, et seq., Code of 1930. When Spears claimed a part of the timber conveyed by him as being on the exempt homestead, he thereupon became a debtor to some extent of his grantee.
In the case of Howell v. Bush, 54 Miss. 437, this court held that it was the duty of the chancery court in such situation to appoint a commissioner to allot the homestead in analogy to the statutes then in force, sections 2136 and 2137, Revised Code of 1871, as far as conformable to chancery procedure. In the case before us the exemptionist cannot be allowed, as he has created the situation we have detailed, to make his own selection in a manner different from that prescribed by the controlling statutes to which we have referred.
Likewise, in the case of Wiseman v. Parker, 73 Miss. 378, 19 So. 102, where the chancellor undertook to allot the homestead, this court held that action of the lower court erroneous, and stated that commissioners should have made the allotment. The court further said (page 103): "It is evident, therefore, that, in the nature of things, a court of itself cannot make an allotment which, properly made, demands knowledge of and acquaintance with the entire premises out of which it is to be carved, while it is probable that a fair-minded intelligent commission of freeholders or householders, familiar with lands and with agriculture, could and would be able to made the selection with reasonable fairness and accuracy." See, also, Willis v. Allen, 131 Miss. 264, 95 So. 435.
It follows that the court below erred in undertaking to adjust the rights of these parties without first having the homestead allotment made as directed by statute, and he should not have made the allotment himself. We do not decide any other question in this case as this is at the threshold thereof, and, when the allotment is made by commissioners, the entire situation may or may not be changed; at any rate, the whole matter will then be before the chancellor to adjudicate the rights of the parties upon the conditions then presented to the court.
Reversed and remanded.