Opinion
No. 36149.
October 28, 1946.
1. HOMESTEAD.
Where owner of 80 acres did not physically reside on the 80 acres but on an adjoining farm of his brother, it was necessary for him, in order to claim the 80 acres as a homestead, to connect his ownership and use of the 80 acres with some estate or title in and to his brother's farm (Code 1942, secs. 318, 330).
2. HOMESTEAD.
For owner of land adjacent to or separated from realty on which the owner resides to be entitled to homestead exemption as to the adjacent or separate tract, he must own a conveyable estate in the land actually occupied (Code 1942, secs. 318, 330).
3. HOMESTEAD.
The purpose of statute exempting land and buildings owned and occupied as a residence by a person from sale, mortgage, etc., without wife's signature, is to prevent the conveyance of the estate by the husband without the joinder of the wife, and, if the husband owns no assignable interest in the land, then the statute has no application (Code 1942, secs. 318, 330).
4. HOMESTEAD.
A homestead right cannot be built on another homestead right of another.
5. HOMESTEAD.
Owner of 80 acres adjacent to his brother's farm, on which he lived as a lodger of his brother, did not have sufficient interest in his brother's farm that would permit him to connect it with his ownership and use of the 80 acres so as to create a homestead right in the 80 acres (Code 1942, secs. 318, 330).
APPEAL from the chancery court of Marion county, HON. LESTER CLARK, Chancellor.
Wells, Wells, Newman Thomas, of Jackson, and Rawls Hathorn, of Columbia, for appellants.
A conveyance, mortgage, deed of trust or other encumbrance upon the homestead exempted from execution shall not be valid or binding unless signed by the wife of the owner if he be married and living with his wife.
Campbell v. Adair, 45 Miss. 170; Hinds v. Morgan et al., 75 Miss. 509, 23 So. 35; Young v. Ashley, 123 Miss. 693, 86 So. 458; Code of 1942, Secs. 318, 322, 330; 83 A.L.R. 54.
Homestead statutes are liberally construed in favor of the exemptionists or home owners.
Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630; Breland v. Parker, 150 Miss. 476, 116 So. 879; Dogan v. Cooley, 184 Miss. 106, 185 So. 783; Dreyfus v. Barton, 98 Miss. 758, 54 So. 254; Gardner v. Cook, 173 Miss. 244, 158 So. 150; Gilmore v. Brown, 93 Miss. 63, 46 So. 840; Holsomback v. Slaughter, 177 Miss. 553, 171 So. 542; Jackson v. Coleman, 115 Miss. 535, 76 So. 545; Levis-Zukowski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435.
The fact that the husband in conveying the property stated that it was not homestead property does not operate as estoppel if it is in fact homestead property.
Bollen v. R.G. Lilly Son, 85 Miss. 344, 37 So. 811; Breland v. Parker, supra; Hinds v. Morgan et al., supra; Kyle v. Peoples Bank Trust Co., 186 Miss. 287, 187 So. 534; Young v. Ashley, supra.
The requirements of Section 330 of the Code of 1942 to the effect that the wife must join in the conveyance of the homestead property applies to the execution of an oil, gas and mineral lease, and to a mineral conveyance.
Gulf S.I.R. Co. v. Singletery, 78 Miss. 772, 29 So. 754; Stokely v. State, 149 Miss. 435, 115 So. 563; 26 Am. Jur. 88.
The northeast quarter of southeast quarter of said Section 12, referred to in the testimony at times as the south forty, and at times as the Rayborn forty, was in fact on July 12, 1943, a part of the homestead property of W.M. Davis and wife, Josie Davis.
Airey et al. v. Buchanan et al., 64 Miss. 181, 1 So. 101; Campbell v. Adair, supra; Chrismand v. Mauldin, 130 Miss. 259, 94 So. 1, Mounger v. Gandy, 110 Miss. 133, 69 So. 817; Nye v. Winborn, 120 Miss. 1, 81 So. 644; Crawford v. Richeson, 101 Ill. 351; Mann v. Corrington, 93 Iowa 108; Neal v. Coe, 35 Iowa 407; Vaughan v. Sterling National Bank Trust Co., 124 S.W.2d 440; Wike v. Garner, 179 Ill. 257; Code of 1942, Sec. 318; 40 C.J.S. 459; Thompson on Real Property, Sec. 988.
The land in controversy was actually occupied as a residence by W.M. Davis and wife at the time of the execution of the mineral lease and mineral conveyance in question within the meaning of the homestead statutes by virtue of the actual occupancy as a home by W.M. Davis and family of the forty acres belonging to his brother immediately adjacent thereto.
McGrath et al. v. Sinclair et al., 55 Miss. 89; Edmonson Winn v. Meacham, 50 Miss. 34; Hinds v. Morgan, supra; Johnson v. Richardson, 33 Miss. 462; King v. Sturges, 56 Miss. 606; Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624; Lewis et al. v. White, 69 Miss. 352, 13 So. 349; Tanner v. Tanner, 111 Miss. 460, 71 So. 749; Murphy v. Vaughn et al. (Ala.) 147 So. 404; Booker v. Booker (Ala.), 125 So. 212; Hill et al. v. First National Bank of Marianna et al. (Fla.), 75 So. 614; Grimes v. Cline, 300 S.W. 235; Lewis et al. v. Lindsley et al., 68 S.W.2d 548; Mann Brothers v. Jenkins, 110 S.W. 387; Mason v. Columbia Finance Trust Co., 35 S.W. 115; 89 A.L.R. 512; 26 Am. Jur. 10, Sec. 6.
Under the long announced rule of this Court, possession of real property is constructive notice of occupant's title to the same extent as that imputed by record of deed to him thereto.
Kalmia Realty Insurance Co. v. Hardy, 164 Miss. 313, 145 So. 506; Russell v. Scarborough, 155 Miss. 508, 124 So. 648; Brimm v. McGee, 119 Miss. 52, 80 So. 379.
Any interest or tenure save that of a mere wrongful intruder or trespasser will support a right of exemption.
McGrath v. Sinclair, supra; King v. Sturges, supra.
A tenant at will of land containing a dwelling is entitled to the exemption.
King v. Sturges, supra; Parisot v. Tucker, 65 Miss. 439, 4 So. 113.
Satterfield, Ewing Hedgepeth, of Jackson, for appellees.
When question of intention is involved the holding of the lower court as the trier of the facts will not be disturbed where supported by substantial evidence.
Early v. U.S.F. G. Co., 181 Miss. 162, 176 So. 720; Seale-Lily Ice Cream Co. v. Buck, 195 Miss. 440, 15 So.2d 213; Rodrigues v. Saegert, Sheriff, et al. (Tex.), 74 S.W. 171.
The northeast quarter of southeast quarter of Section 12, Township 1 North, Range 17 West, Marion County, Mississippi, was not owned and occupied as a residence by W.M. Davis and his wife, Josie Davis, so that it might become their homestead under Sections 318 and 320 of the Code of 1942.
Chrismand v. Mauldin, 130 Miss. 259, 94 So. 1; Mounger v. Gandy, 110 Miss. 133, 69 So. 817; Bank of Cruger v. Hodge, 189 Miss. 356, 198 So. 26; Parker v. Baxter, 42 Ark. 175; Shell et al. v. Young (Ark.), 95 S.W. 798; Blue et al. v. Heilprin et al. (Iowa), 75 N.W. 642; Farmer's National Bank of Seymour v. Coffman (Tex.), 79 S.W.2d 905.
Even if the property could become a homestead without the existence of a residence thereon, and without being used and occupied by the owner, such status would be based upon intention of the head of the family alone, and as to such intention W.M. Davies is estopped by the recitals contained in the lease and mineral deed.
Ritter et al. v. Whitesides, 179 Miss. 706, 176 So. 728; Kyle et al. v. Peoples Bank Trust Co., 186 Miss. 287, 187 So. 534; Cliett v. First National Bank, 182 Miss. 560, 181 So. 713; Tanner v. Tanner, 111 Miss. 460, 71 So. 749; Skiles v. Shropshire (Tex.), 77 S.W.2d 872; Wooten v. Jones (Tex.), 286 S.W. 680.
The interest of a mere share-cropper or of a lodger is not sufficient to support a claim of homestead.
Webb v. Garrett (Tex.), 70 S.W. 992; Turner v. Miller et al. (Tex.), 255 S.W. 237; Greenwalt v. Cunningham et al. (Tex.), 107 S.W.2d 1099; Johnson v. Prosper State Bank (Tex.), 125 S.W.2d 708; Cry v. J.W. Bass Hardware Co., 273 S.W. 347; 40 C.J.S. 442, 524, 525; 32 Am. Jur. 32; 35 C.J. 954; Thompson on Real Property, p. 74, Sec. 1076.
Argued orally by W.R. Newman, Jr., for appellant, and by J.C. Satterfield, for appellees.
We have given earnest consideration to the suggestion of error. We are of the opinion that our original decision was correct, and that the suggestion of error should be, and it is, overruled. However, some of the pronouncements in the original opinion were not necessary to a decision of the case at bar, and, therefore, that opinion is withdrawn and the following is substituted therefor.
On July 12, 1943, appellant, W.M. Davis (whom we will hereafter call Bill Davis), executed to appellee Robert H. Davidor an oil and gas lease and a mineral deed to one-half the minerals on and in forty acres of land in Marion County, Mississippi, both instruments reciting "The property covered hereby is not the homestead of lessor, nor has it ever been used or claimed by him as such." The wife of Bill Davis did not join in the execution of these instruments. The lease was assigned by Davidor to appellee North Central Texas Oil Company, Inc.
In July, 1944, Bill Davis and his wife executed to appellant G.G. Stanford what is termed a "top" oil and gas lease on the same lands.
Bill Davis and his wife and Stanford filed the bill in this cause seeking to remove as a cloud upon their respective claims and titles to said forty acres of land the lease and mineral deed executed by Davis alone to Davidor, claiming, as ground for relief, that the land constituted a part of the homestead of Bill Davis and his wife when the Davidor instruments were executed, and that they were void because of the failure of the wife to join therein. The chancellor dismissed the bill and the complainants therein appeal.
Since 1912, Wallace Davis, a brother of Bill Davis, has owned and occupied as his homestead eighty acres of land consisting of two forty-acre tracts lying north and south of each other, the residence being located near the center of the north forty acres. For some years prior to 1938, Bill Davis was a share-cropper on that north forty under Wallace Davis, Bill and his family, consisting of his wife and daughter, occupying a small house located thereon which was constructed by Wallace and Bill. In 1938, Bill Davis quit farming, and his wife and daughter went to Gulfport to work in a garment plant. Wallace Davis then permitted Bill to occupy a room in his home, Bill moving his household and kitchen furniture to the residence of Wallace, and apparently taking his meals with Wallace's family. No charge was made against Bill. Mrs. Bill Davis visited her husband at infrequent intervals, one time remaining as long as six months while being laid off from work. On these visits, she and her husband occupied that room. Bill Davis was working as a day laborer, mainly at a sawmill operated by Wallace. That situation as to the family life continued from 1938 until after the Davidor lease and deed were executed. In the meantime, and in 1940, Bill Davis purchased from one Ladner forty acres of land in Marion County lying west of and adjoining Wallace's north forty acres, the vendor retaining all minerals in the land, and in September, 1942, Bill Davis purchased from one Rayborn another forty acres adjoining and lying immediately south of the Ladner forty. That resulted in Bill Davis owning eighty acres in Marion County lying immediately west of the eighty acres owned and occupied by Wallace as his homestead in Lamar County, the county line dividing the two tracts. Following are the acts of use and occupancy exercised by Bill Davis upon his land before he executed the lease and deed to Davidor: As to the north, or Ladner, forty he had cleared a small plot near the middle of the forty where he expected to locate his residence. Wallace Davis had a sawmill located on that forty. At that mill some blocks for the contemplated residence had been cut and stacked at or near this cleared spot — just how many blocks is not shown; some framing and sills for the house had been cut and stacked near the mill, which mill was located some thirty or forty feet west of the north forty of Wallace Davis. Bill Davis was asked: "On July 12, 1943, Mr. Davis, when you executed a lease to the south forty to Mr. Davidor, where was the material for your house?" He replied: "It was stacked right side of the road there at the mill, on the north forty . . . I had the material down there but I had not put any of it together." As to the south forty (which is covered by the lease and deed in question) Bill Davis testified he had cleared some eighteen acres — "hired some negroes and piled the saplings and burned them;" had removed an old wire fence which was partly around that forty; had taken down some old posts and cut some new posts, the number not being shown; that formerly a small patch had been planted to garden by a former sawmill operator, and Wallace Davis one year had a small turnip bed thereon. Bill had some calves and a hog or two which roamed over the eighty acres, as well as other lands, along with cattle, and hogs of other persons running at large. There was no house, building or structure of any kind on the land and none of it was in cultivation.
That was the situation as to the family life and living conditions of Bill Davis and his manner of use of the eighty acres at the time he executed the Davidor lease and mineral deed. In these circumstances, appellees say (1) that the interest or title of Bill Davis in the Wallace Davis lands, on which he actually resided, was not such as that he could tie, or connect, the same with his ownership and use of the eighty acres so as to create a homestead right in such eighty acres; (2) that the overt acts of use and ownership upon said eighty acres were not sufficient to legally stamp the lands as a homestead; but, if mistaken in these contentions, (3) that the recitals in the instruments that "The property covered hereby is not the homestead of lessor, nor has it ever been used or claimed by him as such," made by Bill Davis, the owner of the lands and head of the family, worked an estoppel under the circumstances here preventing Bill Davis and his wife asserting their homestead right, since there had never been an actual occupancy of said land by Bill Davis and family as a home; that the most that could be said is that they intended to occupy it, and that under such circumstances the intention of the husband controlled and determined the question.
The view we have taken requires us to pass only upon the first question. Sections 318 and 330, Code of 1942, exempt from sale, mortgage, etc., without the signature of the wife, ". . . the land and buildings owned and occupied as a residence by such person, . . ." There was no building or structure of any kind on the land in question. None of it was in cultivation. Bill Davis did not physically reside thereon; therefore, to claim it as a homestead it is necessary for him to connect his ownership and use of that eighty acres, on which he did not reside, with his estate or title in and to the adjoining land of Wallace Davis, where he did actually reside. Such exemption in the adjacent, or separated tract, may come about where the use of such tract and the estate or title of the claimant in the actually occupied tract are legally sufficient so to do. Hinds v. Morgan, 75 Miss. 509, 23 So. 35; King v. Sturges, 56 Miss. 606. And, it is said in these cases that any interest or tenure of the claimant in the actually occupied land, save that of a trespasser or wrongful intruder, will support the claim. However, it is necessary that the claimant own a conveyable estate in the actually occupied land. The statute exempts ". . . the land and buildings owned and occupied as a residence by such person, . .," and the "homestead right is founded on ownership of some assignable interest in the land." Berry v. Dobson, 68 Miss. 483, 486, 10 So. 45; Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624. The requirement that the interest owned must be an assignable estate meets the purpose of the statute, which purpose is to prevent the conveyance of the estate by the husband without the joinder of the wife. If the husband owns no assignable interest in the land, then the statute has no application. In such case there is nothing for the statute to protect and nothing upon which it can operate. Nor does this requirement run counter to the holding that a tenant at will may claim the exemption. Such relation is that of landlord and tenant while it continues and a conveyance by the tenant of his interest, while not binding on the landlord if he wills otherwise, is good between the tenant and his grantee. In other words, the estate of the tenant is conveyable, although the landlord does not have to recognize it, as indeed he may not do as to the original tenant. Holbrook v. Young, 108 Mass. 83; Meier v. Thiemann, 15 Mo. App. 307, reversed on other grounds in Meier v. Thieman, 90 Mo. 433, 2 S.W. 435. Now, what estate did Bill Davis own in the residence of Wallace Davis? At most, he was either a gratuitous licensee or lodger, in neither of which cases did he own an assignable estate. 32 A.J., p. 30, Sec. 5; Thompson on Real Property, Sec. 1076, p. 94; 35 C.J. 954, Sec. 11-B. The exclusive control of the property was in Wallace; Bill had only a permissive use. How could Bill Davis convey to another the relation which existed between himself and Wallace Davis and Wallace's residence under the facts of this case? There is no question that the occupied premises constituted the homestead of Wallace. Viewed from a common sense standpoint, how could Bill Davis have a homestead right in Wallace's homestead, there being no co-tenancy? A homestead right cannot be built upon another homestead right. Turner v. Miller, Tex. Civ. App., 255 S.W. 237. If so, how many homesteads can be built upon the first? The holding in Hinds v. Morgan and King v. Sturges, supra, is not contrary to this. There the relation of the claimants to the lands actually occupied, as well as that conveyed and not actually occupied, was different from that existing in the case at bar. It must be kept in mind that the forty acres of land leased in the case at bar had never been actually occupied as a homestead and the property actually occupied by Bill Davis, which was in the home of Wallace Davis, was not attempted to be conveyed.
Appellants urge upon us the beneficient private and public objects and results underlying the policy of homestead exemptions which have been so eloquently expressed by the courts and textwriters in days gone by. We are in hearty accord with these, yet, at the same time, it is not amiss to say that unless such right does in fact exist, its assertion should not be permitted to work a wrong on others.
Suggestion of error overruled and affirmed.
Sydney Smith, C.J., did not participate in this decision.