Opinion
No. 34164.
October 14, 1940.
1. HOMESTEAD.
The homestead statute allows only a removal which may be justly adjudged as temporary, and requires a speedy return as soon as cause of absence can be removed (Code 1930, sec. 1776.)
2. HOMESTEAD.
The removal of family from land in 1932 to enable husband to obtain employment after being unable to secure advances necessary to make crop because of financial depression, was an "abandonment" of homestead, notwithstanding intention to return after making enough money to buy farming equipment, where seven years had elapsed and it did not appear when, if ever, there would be enough money to buy equipment (Code 1930, sec. 1776).
3. HOMESTEAD.
To avail of rule that judgment debtor may successfully interpose claim of exemption as against execution creditor at any time before sale under execution if debtor has actually gone into occupancy or re-occupancy of land as homestead at time of sale, occupancy must be such as will stamp place claimed as homestead with character then and there of an actual and permanent residence of debtor and his family, and it is not sufficient that it has been made a mere part-time lodging place, while real residence of family remains elsewhere.
ETHRIDGE, J., dissenting.
APPEAL from chancery court of Leflore county; HON. R.E. JACKSON, Chancellor.
G.H. McMorrough, of Lexington, and Gardner, Denman Everett, of Greenwood, for appellant.
The proof failed to show that residence as contemplated under the law had been re-established by the appellee, and the proof showed that the complainant actually abandoned the tract of land in question, took up their residence and home at other places in the state and have not re-established their residence in such manner as would entitle them to claim the property in question as a homestead.
Whenever the debtor shall cease to reside on his homestead, it shall be liable to his debts, unless his removal be temporary, by reason of some casualty or necessity, and with the purpose of speedily reoccupying it as soon as the cause of his absence can be removed.
Sec. 1776, Code of 1930.
The reason for appellee's removal from her homestead is not such as is contemplated by law to be temporary by reason of some casualty or necessity.
Bank of Hattiesburg v. Mollere, 118 Miss. 154; Moore v. Bradford, 70 Miss. 70; Thompson v. Tillotson, 56 Miss. 36.
There was no intention of "speedily reoccupying" the homestead as required by the statute to preserve the homestead rights. From the language used in Bank of Hattiesburg v. Mollere, 118 Miss. 154, the cause of the abandonment being the same, it appears that appellee's intention in the present case is too general to meet the statutory requirements. Time has shown that appellee's intention is not specific and definite.
Does appellee's occupancy of the property in June, 1939 re-establish her residence in such a manner as would entitle her to claim the property in question as a homestead? Was it such as is within the contemplation of law, sufficient to create a homestead? We think not. At most, appellee's occupancy can only show an intention to make use of the property as a homestead at some future date. In our opinion, this is not enough. Appellee's sole purpose in returning to the property was to prevent its sale. There is no actual occupation at the present time.
To constitute a homestead there must be actual occupation and use of the premises as a home for the family. The premises must be appropriated, dedicated, or used for the purposes designated by the law, to-wit, as a home, a place to abide and reside on, `a home for the family.'
Campbell v. Adair, 45 Miss. 170.
If one ceases to reside on his homestead without some casualty or necessity to cause his removal it becomes liable for his debts. The question in such case is: Was the ceasing to reside on homestead caused by some casualty or necessity such as the law contemplates? If this question is answered in the affirmative, the next question is: Was the removal temporary and with the purpose of speedily reoccupying the homestead as soon as the cause of his absence can be removed? In determining the first question the intent of the parties as to removal or re-occupying is not a matter of consideration. In the other, it is an important subject of inquiry.
Moore v. Bradford, 70 Miss. 70; Wright v. Wright, 160 Miss. 236.
"Temporary removal" means a removal for a fixed and temporary purpose or for a temporary reason, and in order to prevent abandonment of a homestead by such removal it must be made with a certain and abiding intention of returning to the homestead and abiding thereon as a homestead.
8 Words and Phrases 6902; 90 Wis. 362.
Alfred Stoner, of Greenwood, for appellee.
In legal contemplation, a homestead is not abandoned by a debtor who, on account of the depression, which existed in the year 1932 and continued until the year 1938, is compelled to leave his homestead in order to earn sufficient money with which to farm it, he intending during his entire absence to return as soon as the necessary money is earned.
Laws of 1934, p. 518; Jefferson Standard Life Ins. Co. v. Noble, 118 So. 289; Code 1930, sec. 1776; Moore v. Bradford, 70 Miss. 70, 11 So. 630; Thompson v. Tillotson, 56 Miss. 36; Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87; Mounger v. Gandy, 110 Miss. 133, 69 So. 817; Campbell v. Adair, 45 Miss. 170; Gilmore v. Brown et al., 93 Miss. 63, 46 So. 840; Jackson v. Coleman, 115 Miss. 535, 76 So. 545.
We submit that when in the month of May, 1932, it became apparent that the appellee could not borrow sufficient money with which to farm, there was absolutely nothing left for them to do but leave and seek employment. It was either that or starvation, and if such situation does not constitute "casualty" or "necessity" necessitating their leaving, then we are at a loss to imagine a situation that would justify their temporary removal.
The statute merely requires that the debtor must have in mind "the purpose of speedily reoccupying it as soon as the cause of his absence can be removed." In other words, it is only necessary that he have the intention to reoccupy the property speedily after the cause of his absence can be removed. In short, the debtor is not required to speed up or go from low into high until after the cause of his absence is removed.
Code of 1930, sec. 1776; Thompson v. Tillotson, 56 Miss. 36.
Counsel also confuse those instances wherein the debtors left their homesteads because they could "do better" elsewhere and these instances wherein it is not a case of "doing better," but rather of not doing at all unless the homestead is temporarily left.
Moore v. Bradford, 70 Miss. 70, 11 So. 630; Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 Miss. 87.
Assuming for the sake of the argument that such homestead had been abandoned, it is permissible for the exemptionist to again move into the homestead property the day before an execution sale is to be made and thus defeat the sale.
Trotter v. Dobbs, 38 Miss. 198; Lessley v. Phipps, 49 Miss. 790; Irwin v. Lewis, 50 Miss. 363; Letchfort v. Cary, 52 Miss. 791; Wood v. Bowlen, 92 Miss. 843, 46 So. 414, 131 Am. St. Rep. 559; Jones v. Hart, 62 Miss. 13; Dullion v. Harkness, 81 Miss. 8, 31 So. 416.
Argued orally by Richard Denman, for appellant, and by Alfred Stoner, for appellee.
Appellee is the owner of the land in question and she occupied it with her husband and two daughters as the family homestead during the years, 1931 and 1932. During the latter year, however, owing to the financial depression then extremely prevalent throughout the country, and because they were unable to secure the advances necessary to make a crop, they were obliged to remove to a town in a neighboring county where the husband had obtained employment. He continued in various employments in different towns until on or about June 1, 1939, at which time the family was residing at Greenwood and the husband was employed as collector by a furniture company there.
On October 19, 1937 a judgment was rendered in favor of appellant and against appellee and her husband, which judgment was duly enrolled in the office of the circuit clerk of the county in which the land is situated, and an execution having been issued under the judgment, the land was advertised by the sheriff to be sold on the 1st day of June, 1939. A day or two before the day of sale, appellee moved some of the furniture from the residence in Greenwood to the house on the land in question, and thereafter appellee and one of her daughters, the other daughter being then married, spent one or two nights during every week end on the land, but the week days were usually spent at the residence in Greenwood, where the daughter was in school and where the husband continued in his employment as aforesaid.
The contention of appellee is that she had never abandoned her homestead, but that her removal in 1932 was temporary, by reason of the necessity aforesaid, and that throughout the intervening seven years next preceding the advertised date of sale under the execution, she and her husband had maintained the intention and purpose of reoccupying the homestead as soon as the cause of their absence could be removed. See Sec. 1776, Code of 1930. Their testimony is to the effect, however, that their intention to return was when they had been able to make enough money, in employment away from the homestead, to buy the necessary farming equipment and to maintain themselves on the farm homestead; that during the seven years absence they had not been able to do this, and throughout the testimony there is no indication when, or whether ever, they will be so able. The statute allows only a removal which may be justly adjudged as temporary and requires a speedy return as soon as the cause of the absence can be removed; but according to the testimony, the obstacle in the way of a speedy return may never be removed. The case is controlled, therefore, by the rule as reviewed in Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87, with the result that it must be held that there is an abandonment of the homestead.
Appellee relies as her second contention on the long line of cases in this state beginning with Trotter v. Dobbs, 38 Miss. 198, to the effect that a judgment debtor may successfully interpose his claim of exemption as against the execution creditor at any time before sale under the execution if the debtor has actually gone into the occupancy or reoccupancy of the land as a homestead at the time of the sale. In order to avail of that rule, the premises being already habitable, the occupancy must be such as will stamp the place claimed as a homestead with the character then and there of an actual and permanent residence of the debtor and his family, and it is not sufficient that it has been made a mere part-time lodging place, while the real residence of the family remains elsewhere, as the testimony shows was the case here.
Reversed and remanded.
DISSENTING OPINION.
I think the judgment in this case should be affirmed. The owner does not lose his homestead by a mere temporary absence from it, even a prolonged absence, if it be caused by necessity. The proof here shows that the owner of the homestead had to leave it temporarily, in order to make a living, as he could not secure the furnish or financial aid necessary to the operation of the farm. I do not know a more urgent necessity than to make a living; and everyone knows that from 1932 until the present people have had an extremely difficult time in securing the means and supplies to equip a farm which is without implements, etc., needed for the purpose of making a living on it.
Without undertaking to review the many cases which have been decided on this question, I shall content myself with referring to a few which in my opinion warranted the Chancellor in his findings, and support his judgment.
It is, of course, well known that what constitutes a necessity within the meaning of the homestead statute depends largely upon particular facts in the particular case. It may be said to be a question of fact, or decision on a trial of facts.
In Campbell v. Adair, 45 Miss. 170, it was held that actual, literal, physical, continuous occupation of the homestead by some member of the family is not required; that under some circumstances occupancy by a tenant for the benefit of the family is sufficient. It was also said the waiver or forfeiture of the homestead right should be declared only upon clear and decisive proof of an intention totally to relinquish and abandon such premises animo non revertendi. The facts in this case and the discussion of them by the Court will not be set forth, as I do not desire to protract this opinion unduly.
In Jackson v. Coleman, 115 Miss. 535, 76 So. 545, 546, it was said: "Homestead laws would be construed liberally for the exemptionist, and . . . an abandonment would not exist unless it was clear from the proof that the exemptionist had removed from the homestead with the intention of not returning." In that case a widower, being unable to work on account of rheumatism, left his farm and leased it for five years in order to support his children from the rent, and who tried to regain possession of the farm after he was better, was held not to have abandoned his homestead within the meaning of the Code of 1906, section 2157.
In Gilmore v. Brown, 93 Miss. 63, 46 So. 840, it was again held that the homestead exemption laws are to be liberally construed in favor of the exemptionist; and it was also held that the fact that the owner of a country homestead voted and held office in a village to which his removal was claimed to have been temporary is not conclusive evidence of an abandonment of the homestead; that such owner may purchase a house in a village, move his family there for the purpose of educating his children, qualify there as a municipal elector and hold municipal office, without forfeiting his right to claim exemption for his country home, if he keeps actual possession of it, either in person or by some member of his family, cultivates it yearly, never ceases to claim it as his homestead, and always intends to return to it as soon as the object for which he removed to the village has been accomplished. The Court cited numerous authorities from other states to support its conclusion.
In Tiser v. McCain, 113 Miss. 776, 74 So. 660, it was held that the exempt property of a decedent could not be partitioned without the consent of the widow; and that the fact that she was not actually living upon the property did not render it subject to partition, provided she used it.
In Collins v. Bounds, 82 Miss. 447, 34 So. 355, it was held that temporary removal from the homestead by husband and wife, with the intention of returning, is not such abandonment as to render valid the deed thereto by the husband, in which the wife did not join. This Court held to the same effect in Columbian Mutual Life Ins. Ass'n v. Jones, 160 Miss. 41, 133 So. 149. In that case the husband had moved to the city of Jackson from his country home, in order to be under the care of a physician, and to receive vocational training at Millsaps College, provision for which had been made by the United States Government. During this period both husband and wife lived in Jackson, but with the intention of returning to the homestead as soon as conditions permitted. The husband undertook to convey the homestead without the wife's signature; and it was insisted that the removal, coupled with his attempted conveyance, lost the exemption. However, the statute requires the consent of the wife; and not having obtained her signature to the deed, it was held to be invalid, and sustained the right of the wife in the country homestead.
In Ross v. Porter, 72 Miss. 361, 16 So. 906, 907, it was held that where an exemptionist abandons a rural homestead and acquires another in town, but later on abandons the latter with the intention, as soon as practicable, of reoccupying the country home; then, after arranging with his tenant, and making preparations therefor, was prevented from returning to his homestead by illness and subsequent death; the Court held that the country place became reinvested with its homestead character, and was exempt from his debts. In the course of the opinion Judge Woods, speaking for the Court, after stating the pertinent facts, said: "In Wilson v. Grey, 59 Miss. 525, it was held, in effect, that an intention to speedily abandon a homestead, followed by an actual abandonment, would divest the residence of the character of a homestead. This rule will stamp the country place, in the case at bar, with the character of a homestead. S.H. Ross had abandoned the town house as a homestead, and had formed the fixed intention of reoccupying the country place as his homestead as speedily as possible. He had made the necessary preparations to reoccupy in September of October, and he only failed to actually take possession by reason of prostration on his deathbed, his death occurring late in November — a date subsequent to that on which he had arranged to enter."
In the case here the testimony shows that the owners of the homestead had at all times intended to reoccupy it as soon as they could arrange to finance it. It was necessary for them to live, and the salary or compensation which the husband received did not appear to have exceeded the living expenses of the family. In my opinion, they did reoccupy the homestead by moving thereon prior to the sale of the place under the judgment, and it would not be necessary for them to be personally present at all times. The occupancy they had made, and the arrangements, were sufficient to manifest their intention to occupy and claim the place as a homestead. Certainly the Chancellor was warranted in so finding from the testimony in the case; and it is for the Chancellor to decide questions of fact, and to draw conclusions from facts, where more than one reasonable conclusion might be drawn.