Opinion
No. 33140.
May 30, 1938. Suggestion of Error Overruled June 20, 1938.
1. HOMESTEAD.
Where husband moved from homestead with wife's consent, selected another place to live and executed trust deed on homestead, obtaining loan on representation that homestead did not exist, husband and wife could not claim homestead as against holder of trust deed.
2. HOMESTEAD.
A husband may select a homestead and move from one and select another, although such right has some limitations in wife's favor, and wife has right in homestead which equity will protect at her instance in some cases.
3. HOMESTEAD.
Homestead rights are not lost by removal from homestead through casualty and necessity with intention of returning whenever conditions making it possible, which intention has not been abandoned.
4. MORTGAGES.
In suit under Moratorium Act to enjoin foreclosure of trust deed, order that plaintiffs pay to holder of trust deed one-fourth of cotton and one-third of corn produced on land covered by trust deed under provision of such act authorizing chancellor to require payment of income or rental value on taxes, insurance, and interest, with reasonable sum for upkeep of property, was not erroneous (Laws 1934, chapter 247, section 4).
5. MORTGAGES.
Under Moratorium Act providing that court or chancellor in vacation shall receive evidence tending to establish reasonable normal actual value of mortgaged property "and may fix an upset price thereon," fixing of upset price is proper in all cases, but is not compulsory (Laws 1934, chapter 247, section 4).
APPEAL from the chancery court of Clay county; HON. JAMES A. FINLEY, Chancellor.
J.E. Caradine and B.H. Loving, both of West Point, for appellants.
We take the position, first, that this case should be reversed and rendered as to the one hundred sixty acres of land claimed as a homestead, for the reason that there was no abandonment of the homestead in question by either Cliett or his wife and that an abandonment by the wife is necessary as well as by the husband, where the land had theretofore been impressed with the characteristics of a homestead, as a necessary sequence to the decision of this court in the case of Columbian Mutual Life Ins. Co. v. Jones, 133 So. 149, which case overrules the line of decisions of this court following Pounds v. Clark, 70 Miss. 263, 14 So. 22, and, second, that this case should be reversed and rendered as to the outright and absolute order in said decree directing the delivery of the part of the crops, and, third, in the alternative, if we are mistaken on the question of the homestead exemption, that the case should be reversed and remanded for new trial as to the moratorium feature of the bill, because there was no proper predicate and evidential basis for the decree rendered with reference to the same and the same was unjust, unreasonable and arbitrary and made with no proof before the court.
We wish to call the attention of the court to the rule, which has been maintained in this jurisdiction from the earliest times to the present time, and which cannot be disputed, and which is to the effect that our exemption laws are to be liberally construed in favor of exemptionist to effectuate the purpose of these statutes and to protect the homes which furnish the shelter and means of life to innocent women and children from the demands of creditors and from the improvident acts of the husband. This rule is so unanimously recognized that it is hardly necessary to cite authorities in support of the same, but nevertheless we will call the court's attention to several, which are Jackson v. Coleman et al., 76 So. 545; Gilmore v. Brown, 93 Miss. 63, 46 So. 840; Hinds v. Morgan, 75 Miss. 509, 23 So. 35; Campbell v. Adair, 45 Miss. 170; Gardner v. Cook, 158 So. 150.
The proof of this abandonment under all of the authorities must be clear and decisive and beyond all reasonable grounds of dispute, and as is stated by this court in one case, a doubtful or mixed case on this point is not sufficient. The burden of proof as to showing this abandonment to this degree is upon the one asserting the abandonment, and in this case is upon appellees. It must be clear from the proof that the removal was with the intention of not returning.
Jackson v. Coleman, 76 So. 545; Gilmore v. Brown, 93 Miss. 63, 46 So. 840.
The proof of the abandonment of a homestead in a case of this character must be clear and decisive of an intention on the part of a spouse to abandon the homestead, accompanied by a removal from the premises.
Campbell v. Adair, 45 Miss. 170.
Likewise, homestead statutes are to be construed sensibly, but liberally, in favor of the exemptionist.
Gardner v. Cook, 158 So. 150; Hardesty v. Warner, 130 La. 335, 58 So. 527; Hinds v. Morgan, 75 Miss. 509, 23 So. 35; Moseley v. Anderson, 40 Miss. 49.
We take the position, further, that for an abandonment of the homestead rights to be an abandonment thereof, such abandonment must exist on the part of Mrs. Cliett as well as her husband and that she must have left the premises with no intention of returning and, we take this position fully mindful that there are decisions of this court to the effect that the husband may select the domicile of the family and may change the same without the consent of the wife, but we take the further position that these cases have been necessarily overruled or modified in this respect by the recent decision of this court in the case of Columbian Mutual Life Ins. Co. v. Jones, 160 Miss. 41, 133 So. 149.
McDonald v. Sanford, 88 Miss. 633, 41 So. 369, 117 Am. St. Rep. 758, 9 Ann. Cas. 1; Young v. Ashley, 123 Miss. 693, 86 So. 458.
We also desire to call the court's attention to the fact that there is a line of decisions in other states to the effect that the husband cannot abandon the homestead without the consent of the wife, though this is perhaps in the minority rule, and in considering the cases on this question, of course, the provisions of various statutes must also be considered as well as the decisions of the court construing such statute.
Way v. Scott, 118 Iowa 197, 91 N.W. 1034; Weatherington v. Smith, 77 Neb. 363, 109 N.W. 381, 124 Am. St. Rep. 855, 13 L.R.A. (N.S.) 430, 77 Neb. 369, 112 N.W. 566; Long v. Talley, 201 P. 990; Alton Mercantile Co. v. Spindel, 42 Okla. 210, 140 P. 1168; Jones v. Jones, 281 Ill. 595, 117 N.E. 1013.
The absolute order directing a delivery of part of the crops is reversible error.
The decree as to the moratorium is reversible error.
This part of the decree grants an injunction, where none then existed, from September 2nd to January 1st, 1938, a little less than four months in point of time, upon the condition that appellants pay to the bank one-fourth of the cotton raised on the land for the year 1937 and one-third of all of the other agricultural products raised thereon during such year, which is the common share rental basis for one year and thus, a year's rent was required to be paid for an injunction extending only four months. We think that this in itself was unreasonable and arbitrary and went further than was authorized by the statute.
Sec. 4, Chapter 287, Laws of 1936.
Frank A. Critz, of West Point, for appellees.
Appellants claim that 160 acres, including the residence on the farm, was a homestead, and that since the wife did not sign the deed of trust, that said deed of trust is void or voidable. If it was a homestead at the time of the execution of the deed of trust, it should have been signed by the wife to make it legal; but if it was not a homestead at that time, the legal title being in the husband, the deed of trust executed solely by the husband conveyed the entire property to the trustee for use of the bank, subject to the right of redemption written thereon.
A husband can abandon the homestead without the consent of the wife.
13 R.C.L. 651, sec. 112.
It is a principle of universal law that the domicile of the husband is the domicile of the wife. Story's Con. of Laws. Nor is the assent of the wife necessary to enable the husband to select and fix the homestead. He may change it at pleasure without her consent.
Thoms v. Thoms, 45 Miss. 276; Burkhardt v. Walker Son, 102 Am. St. Rep. 393; Farmers, etc., Loan Assn. v. Jones, 68 Ark. 76, 82 Am. St. Rep. 280; Cramer v. Lamb, 84 Minn. 468; Sutter v. Sutter, 72 Miss. 345.
Intention to return must exist at the time of removal from the homestead. An intention afterwards formed will not prevent the abandonment from becoming perfect in the meantime. And if the abandonment has once become complete, the homestead is as though it had never existed.
Phillips v. Springfield, 39 Ill. 83; Carter v. Goodman, 11 Bush, 228; Taylor v. Hargous, 60 Am. Dec. 608; Smith v. Bunn, 75 Mo. 559; White v. Roberts, 112 Ky. 788; Murphy v. Farquhar, 39 Fla. 350, 22 So. 681; Kaes v. Gross, 92 Mo. 647, 1 Am. St. Rep. 767; Thompson v. Tillotson, 56 Miss. 36; Majors v. Majors, 58 Miss. 806; Lewis v. Ladner, 172 So. 312.
In the case at bar, the appellant, S.A. Cliett, left the homestead with the intention of returning, but at the time of the making of the deed of trust, he had changed his intention and thus lost all homestead rights in the 220 acres.
Ritter v. Whitesides, 179 Miss. 706, 176 So. 728.
Under the moratorium act itself, the Chancellor is given wide discretion in entering orders as to the payment of taxes, to the mortgagee, etc., and so long as he does not abuse this discretion, this court will not reverse any order made by him. It certainly is not apparent that he has abused this discretion when he orders the crop turned over amounting to the nominal rent for one year to the bank, the mortgagee, and especially when you consider that the bank, by the payment of taxes and accrued interest, the indebtedness has increased from $1500.00 to over $3,000.00, and especially, the appellants cannot complain of said order when in their brief they complain of the shortness of crops, and an order to deliver a certain part of the crop automatically takes care of any shortness of crop. So the appellants are not penalized by the order if the crop is short. I see no reversible error in the order as entered by the Chancellor.
The appellants, S.A. Cliett, and his wife, Careta Lofton Cliett, resident citizens of Clay county, Mississippi, filed a bill in the Chancery Court of that county for an injunction against foreclosure of a deed of trust, and to establish a homestead right in the land embraced in the deed of trust. While the bill was originally filed under the moratorium act of 1934, Laws 1934, c. 247, by agreement of all parties and the court, the issue was tried under chapter 287 of the Laws of 1936, that chapter having become operative at the time of the trial. The appellants were formerly owners in fee of 220 acres of land described in the bill of complaint, and occupied prior to 1936 as a home or homestead. In 1926 S.A. Cliett and his wife moved to West Point, Mississippi, which was a more convenient location for the business of buying and selling cattle in which Mr. Cliett was engaged; and in 1928 they both registered there as voters.
On February 13th, 1930, S.A. Cliett, owner of the land involved in this cause, executed a deed of trust to F.A. Critz, trustee, to secure an indebtedness to the bank, borrowing at the time $1,500.00, in which deed of trust it was stipulated: "In consideration of one dollar I convey and warrant to Frank A. Critz, Trustee, the following described real estate situated in Clay county, State of Mississippi, not used by me as a homestead, and described as follows," describing the 220 acres of land. His wife, Careta Lofton Cliett, did not sign this deed of trust, and the proof shows that she did not know of its execution at the time.
Subsequent to the execution of this deed of trust S.A. Cliett and his wife returned to their former home and occupied it. In 1932 the bank sought to have the deed of trust renewed, but the wife, Careta Lofton Cliett, refused to sign it. Thereafter the bank, through its trustee, proceeded to advertise the land for sale on the 24th of December, prior to which date the bill was filed, seeking the benefit of the moratorium statute, and to have the land embraced in the deed of trust to the extent of 160 acres declared a homestead. The evidence shows that at the time of the giving of the original deed of trust the president and another person in the bank who took the acknowledgment to the deed of trust, asked S.A. Cliett if the land was a homestead, and he replied that it was not. On the hearing the Chancellor decreed that the homestead had been abandoned by the removal therefrom, and by the act of S.A. Cliett in executing a deed of trust, representing that it was not his homestead. The Chancellor postponed the date of the sale under the moratorium act for some months, but required the appellants to deliver to the bank one-fourth of the cotton and one-third of the corn produced on the said lands embraced in the deed of trust. And from this decree the appellants prosecuted the appeal to this Court.
We think that under facts stated the Chancellor was correct in holding that the homestead had been abandoned. In Ritter et al. v. Whitesides, 179 Miss. 706, 176 So. 728, it was held that a husband has a right to select a homestead and to move from one and select another. This right, of course, has some limitations in favor of the wife, and she has a right in a homestead which equity will protect at her instance in some cases. But when the husband moves from the homestead with the consent of the wife, selects another place to live, and then encumbers the former homestead while neither he nor his wife are living there, securing a loan on the representation that the homestead did not exist, the right to the homestead is waived in favor of the mortgage or deed of trust so given. In Ritter et al. v. Whitesides, supra, it is said in the fourth syllabus: "Recital by husband in trust deed executed by him alone, that land involved was no part of his homestead, was sufficient evidence of his selection of new homestead, when he and wife were, in fact, occupying other land for living purposes, and recordation of such trust deed prevented the parties from acquiring any but subordinate rights in the land." Of course, the removal from a homestead by reason of casualty and necessity, with the intention of returning whenever conditions make it possible for the parties to do so, which intention has not been abandoned, does not lose the homestead rights to the owners. See Jackson v. Coleman, 115 Miss. 535, 76 So. 545; Gilmore v. Brown, 93 Miss. 63, 46 So. 840; Campbell v. Adair, 45 Miss. 170. Many other cases could be cited on the proposition, but we deem the above sufficient to show that the Chancellor's decision was based on sufficient evidence, and his decree as to the homestead was sound.
It is also complained that the Chancellor erred in directing the payment of one-fourth of the cotton and one-third of the corn as a condition of granting the relief under the moratorium act, chapter 247, Laws of 1934. Section 4 of that act provides: "Suits for the foreclosure of mortgages and deeds in trust shall be deemed ready for final hearing at any time after the expiration of thirty days from the completion of the service of summons on all parties. On the hearing the court or chancellor in vacation shall receive evidence tending to establish the reasonable normal actual value of the mortgaged property, and may fix an upset price thereon; shall determine the reasonable value of the income on said property, or if it has no income, then the reasonable rental value, and in lieu of a present order of sale, shall direct and require the mortgagor, or those interested through or under him, to pay all or a reasonable part of said income or rental value in or toward the payment of taxes, insurance and interest on the mortgage indebtedness, together with a reasonable sum for the upkeep of the property. Said payments shall be made at such times and in such manner as shall be fixed and determined and ordered by the court or chancellor in vacation and as, according to the circumstances, may appear just and equitable, for a term not to exceed two years. After the expiration of two years, if the principal and any past due interest, taxes, and the like, have not been paid, a final order for sale may be made."
It will be seen from this provision that the Chancellor is authorized to require the parties seeking relief under the moratorium act "to pay all or a reasonable part of said income or rental value in or toward the payment of taxes, insurance and interest on the mortgage indebtedness, together with a reasonable sum for the upkeep of the property." We think the Chancellor was well within the law in requiring the plaintiffs to pay said amount under this section.
It is also argued that the Chancellor did not, in the decree on the value, fix an upset price on the property. The language of the act, "and may fix an upset price thereon," is permissive, and not obligatory; the Chancellor has control of the matter, and may pass upon the adequacy of the price after the sale is made, and if it is grossly insufficient may set aside such sale and order a resale. It would, of course, be proper in all cases to fix the upset price so as to secure a fair value at the sale of the property, but the statute does not make this procedure compulsory.
We find no reversible error in the case, and the judgment is affirmed.
Affirmed.