Summary
holding that homestead statutes are to be construed sensibly, but liberally in favor of the exemptionists
Summary of this case from Thurman v. ThurmanOpinion
No. 31480.
December 10, 1934. Suggestion of Error Overruled August 31, 1935.
1. HOMESTEAD.
Evidence in unlawful entry and detainer action held to show that defendant's husband had not abandoned defendant or their homestead when she executed trust deed, on foreclosure of which plaintiff purchased land, so that deed, in which husband did not join, was void (Code 1930, sections 693, 1780, 3456, 3458).
2. HOMESTEAD.
Proof of husband's abandonment of homestead in unlawful entry and detainer action against wife by purchaser of land at sale on foreclosure of trust deed executed by wife alone must be clear and decisive of such intention, accompanied by husband's removal from premises (Code 1930, sections 693, 1780, 3456, 3458).
3. HOMESTEAD.
Homestead statutes must be construed sensibly, but liberally, in favor of exemptionists (Code 1930, section 1780).
4. FORCIBLE ENTRY AND DETAINER.
Invalidity of trust deed, on which plaintiff in unlawful entry and detainer action based his claim, held available defense, though such action is possessory only and title is not involved (Code 1930, sections 693, 3456, 3458).
5. HOMESTEAD.
Benefits of statute invalidating trust deed of wife's homestead, unless signed and acknowledged by husband living with wife, need not be affirmatively asserted by husband in unlawful entry and detainer action by purchaser at sale on foreclosure of such deed (Code 1930, sections 693, 1780, 3456, 3458).
6. HOMESTEAD. Wife, securing credit and advances on faith of her trust deed, held not estopped to assert invalidity thereof because not signed by husband, living with her on homestead conveyed, as defense to unlawful entry and detainer action by purchaser of land at foreclosure sale ( Code 1930, sections 693, 1780, 3456, 3458).
Evidence showed that neither party to trust deed knew that husband's signature was necessary and there was no showing that husband was requested to sign instrument or that wife made any representation which could have deceived purchaser at foreclosure sale.
APPEAL from the circuit court of Washington county.
HON. S.F. DAVIS, Judge.
Action by H.K. Gardner against Susan Gray Gant Cook. Judgment for defendant, and plaintiff appeals.
Affirmed.
D.H. Waits, of Leland, for appellant.
The primary point in this case is this: whether or not the husband of appellee was "living with his wife" at the time of the execution of the trust deed, and this point involves a construction of section 1780, Code of 1930.
In the construction of these statutes, whether they shall be liberally or rigidly interpreted, is not precisely the distinction demanded. They should be sensibly construed.
Gibson v. Jenning, 15 Mass. 205; Campbell v. Adair, 45 Miss. 170.
The exemption laws are founded in the beneficent policy of securing families against poverty and want, and protecting them against the misfortunes, the extravagances and follies of their heads.
Thoms v. Thoms et al., 45 Miss. 263.
In the record of the case at bar there is nothing to indicate that the husband of appellee has any intention of returning to her home, nor any prospect of contributing to her support. But ceasing to reside on a homestead is rather a matter of fact than of intent.
Thompson v. Tillotson, 56 Miss. 36; Majors v. Majors, 58 Miss. 806; Moore v. Bradford, 70 Miss. 70; Scott et al. v. Scott, 73 Miss. 575; Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 666.
To construe the statute as the court below did is not only unreasonable but is unjust to the wife.
The action being one of unlawful entry and detainer only the question of possession is involved and neither the legal title to the property nor any secret equities existing between the parties can be considered.
Clark v. Bourgeois, 86 Miss. 1.
Appellee is estopped by her own actions from claiming the benefits of section 1780, Code of 1930.
The benefits of the statute must be affirmatively asserted, which has not been done by the husband of appellee.
Scott et al. v. Scott, 73 Miss. 575. Douglas E. Beams, of Greenville, and Louis C. Hallam, of Jackson, for appellee.
Where the husband owns the homestead the wife must join in any instrument seeking to convey or incumber it.
Section 1778, Code of 1930.
Both the appellee and her husband, Jesse Cook, were over sixty years of age, and, therefore, the last paragraph of section 1766, Code of 1930, is pertinent here.
The conditions existing at the very time of the execution of the instrument determine its validity.
Cummings v. Busby, 62 Miss. 195; Hubbard v. Sage Land Improvement Co., 81 Miss. 616; Gulf, etc., R.R. Co. v. Singleterry, 78 Miss. 777, 29 So. 754.
Homestead statutes are to be "sensibly" construed.
Gibson v. Jennings, 15 Mass. 205; Campbell v. Adair, 45 Miss. 170 -182; Bank v. O'Neal, 86 Miss. 45, 38 So. 630; Gilmore v. Brown, 93 Miss. 63, 46 So. 40; Levis-Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435, 666.
The deed of trust in this case was void.
Bolen v. Lily, 85 Miss. 344, 37 So. 811, 107 A.S.R. 291; Hubbard v. Sage, 81 Miss. 616; Moseley v. Larson, 86 Miss. 288, 38 So. 234; Levis-Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435-666; Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 48 So. 516; Breland v. Parker, 150 Miss. 476, 116 So. 879; Smith v. Stanley, 159 Miss. 720, 132 So. 452; Federal Land Bank v. Miles, 152 So. 472.
There is no evidence in the record that Jesse Cook intended "totally to relinquish and abandon his right," to say nothing of "clear and decisive proof of that intention," and without such evidence an abandonment cannot be declared.
Campbell v. Adair, 45 Miss. 170-182; Thompson v. Tillotson, 56 Miss. 36; Ross v. Porter, 72 Miss. 361, 16 So. 906; Majors v. Majors, 58 Miss. 806; Moore v. Bradford, 70 Miss. 70, 11 So. 63; Jackson v. Coleman, 115 Miss. 535, 544.
Husband and wife are living together within the meaning of the statute, though oceans separate them, unless there has been a desertion or abandonment of one by the other "with intention never to return."
Walton v. Walton, 76 Miss. 662, 666, 25 So. 166; Levis-Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435; Scott v. Scott, 73 Miss. 575, 19 So. 589; Board of Mayor, etc., of Booneville v. Clayton, 155 Miss. 428, 435, 124 So. 490.
As to the homestead, the wife (or the husband) has more than a veto power. If the title be in the husband, the wife "has some kind of an interest in, though no title to, the land."
Columbian Mutual Life Ins. Co. v. Jones, 160 Miss. 41, 52, 133 So. 149; McDonald v. Sandford, 88 Miss. 633, 41 So. 369, 117 A.S.R. 758, 9 Ann. Cas. 1; Young v. Ashley, 123 Miss. 693, 86 So. 458.
Under the law, a person purchasing an exempt homestead is affected with notice of the exemption and with the knowledge of the law that it is necessary to a valid conveyance of a homestead that both husband and wife join in such conveyance.
Breland v. Parker, 150 Miss. 476, 486, 116 So. 879.
If the legal title to this property was not involved in this action, then it is clear that the appellant has no standing before this court.
Williams v. Simpson, 70 Miss. 113, 11 So. 689; Murf v. Maupin, 113 Miss. 670, 678, 74 So. 614.
The appellant never having had possession, and never having been deprived of possession, was not entitled to possession.
Taylor v. Orlansky, 92 Miss. 761, 46 So. 136; Robinson v. Boggan, 97 Miss. 27, 52 So. 705.
The appellee was not estopped to claim the invalidity of the deed of trust executed by her in which her husband did not join.
Home Loan Assn. v. Leonard, 77 Miss. 39, 29 So. 351; Scottish-American Mtg. Co. v. Bunckley, 88 Miss. 641, 650; Canan-Commercial Trust Savings Bank v. Brewer, 143 Miss. 146, 181, 108 So. 424; Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 251, 48 So. 516; Breland v. Parker, 150 Miss. 476, 484, 116 So. 879; Davis v. Butler, 128 Miss. 847, 91 So. 279; Day v. McCandless, 167 Miss. 832, 840, 142 So. 486; Federal Land Bank v. Miles, 152 So. 472.
The act of the husband cannot destroy the right of the wife and children to the homestead exemption, nor can the assertion of this right be estopped by the act of the husband.
Hammond State Bank Trust Co. v. Broderick, 154 So. 739, 741; Law v. Butler, 44 Minn. 482, 47 N.W. 53, 9 L.R.A. 856, 858; Van Doren v. Wideman, 68 Neb. 243, 94 N.Y. 124, 110 A.S.R. 419, 429.
Argued orally by D.H. Waits, for appellant, and by Louis C. Hallam, for appellee.
This was an action of unlawful entry and detainer filed in the county court of Washington county by the appellant, Gardner, a white man, against the appellee, Susan Gray Gant Cook, a negro woman sixty-eight years of age, alleging that she unlawfully withheld from him the possession of a small twenty-acre farm.
The appellee appeared and filed a general issue plea. On the trial of the issue, the county court entered a judgment in favor of the appellant, Gardner, adjudging that he was entitled to the possession of the land in controversy. Appellee appealed to the circuit court, which reversed the judgment of the county court, and entered a judgment in favor of the appellee, with costs. An appeal is prosecuted here from that judgment.
This is a proceeding under sections 3456 and 3458, Code 1930, except that exclusive jurisdiction is now vested in the county court. See section 693, Code 1930.
Gardner's claim of possession was based on a trustee's deed made to him by the trustee named in a deed of trust executed by Susan Gray Gant Cook in favor of Gardner, default having been made therein, foreclosure had, and Gardner being the purchaser at the sale.
The appellee contended that the deed of trust and the trustee's deed were void under section 1780, Code 1930, because she was married and her husband had not signed and acknowledged the deed of trust.
The narrow question presented was whether or not, within the purview of the said statute, the husband was living with the wife.
It appears from the evidence that the appellee was married to Cook on May 1, 1930, and that they lived together immediately thereafter on the land in controversy as a homestead. The wife, Susan, had lived there since the year 1921, and since the death of her former husband, Gant. In 1931, at the time when she and her husband, Cook, were living together on this land, she, without the husband joining therein, executed a deed of trust in favor of Gardner for a pre-existing debt, and to secure advances to be made during the year. On March 2, 1932, Gardner required Susan to execute a deed of trust which she signed as Susan Gray Gant, and in the body of this deed of trust, which had been prepared by Gardner, she was described as Susan Gray Gant. A few days later, he prepared another deed of trust correcting, in some measure, the description, and describing her as Susan Gray Gant Cook, which she signed, acknowledged, and delivered to him. It was promptly recorded, and this last deed of trust was foreclosed.
Prior to the beginning of this suit in February, 1934, Gardner knew of the marriage and knew of their occupancy of the land as a homestead, but did not know that it was necessary for the husband to join in the deed of trust.
Gardner testified that, after the execution of the first deed of trust in 1931, Susan told him that her husband had left the place and would not return; that she could not take additional land because her husband was of no account to her. He further testified that he had not seen the husband about the premises since May, 1931, although he was frequently in that community.
At the time of the signing of the deed of trust in controversy, no conversion is shown to have been had, or representation made, between the parties. No inquiry was made with reference to the husband.
Two witnesses for the appellant testified that they had not seen the husband on the place where Susan lived since the spring of 1931. One witness testified that the husband had left the place carrying a small bundle of clothes and proceeded to the house of his married daughter not far from Susan's house.
Susan, in her own behalf, testified that, on the day the deed of trust which was foreclosed was signed by her, her husband was in the house living with her. This is undisputed. It is further undisputed that in May, 1931, he was sick with high blood pressure, unable to work, and that he went to the home of his married daughter in order that he might have chickens and milk, Susan being unable to furnish the necessary food. That he would stay with his daughter until her husband expressed dissatisfaction, and then he would return to Susan's home. She testified that they lived together two years, and that in the fall or winter of 1932 her husband left the home of his daughter to go to the hills, saying the water at her place was killing him. Susan further testified that, in the fall of 1933, she received a letter from her husband in which he expressed a desire to return to his home with her, that he needed an operation; that she had a misunderstanding with him, the circumstances of which were not inquired into by either party. She was not divorced from Cook, and she was willing for him to return at any time. She said they would tease her, and she probably said that he was no account and of no use to her.
After a careful study of this record, we have reached the conclusion that the negative testimony of some of the witnesses and of Gardner that they had not seen the husband on the place since May, 1931, is not in conflict with Susan's positive statement that she and her husband lived together for two years, and were living together when the two deeds of trust were executed in 1932. Her testimony, likewise, is undisputed as to his reason for not occupying the home with her at times. The letter she received from him, as to which she testified, is not disputed. We, therefore, conclude that he was living apart from his wife, not as a separation from her, but because she was unable to provide him with the necessary food, and because the water was injurious to his health. As stated, Susan and her husband are negroes, and the testimony with reference to their living apart, and the causes thereof, must be viewed in connection with the general knowledge of their traits and characteristics. They were old, the husband being seventy years of age, and, as stated, Susan being sixty-eight.
The one disagreement, the nature of which is not shown, is not sufficient upon which to base a decision of the court that he had abandoned his home. We think the record shows that he was away therefrom because of the necessities of his case, proper food, etc., and that his letter shows that he had not abandoned the conjugal relation, nor the occupancy of the exempt homestead within section 1780, Code 1930, a portion of which reads as follows: "A conveyance, mortgage, deed of trust or other incumbrance of the homestead where it is the property of the wife shall not be valid or binding unless signed and acknowledged by the owner and the husband if he be living with his wife. . . ."
Applying the rule, which is applicable here and almost everywhere, to this case, we think the circuit court correctly found that Cook was living with his wife. His signature was necessary, and, without it, the deed of trust was void, a nullity. Cummings v. Busby, 62 Miss. 195, where it was said that: "The deed of trust executed by Busby without the joinder of his wife, as required by the statute, was not valid, and its invalidity was not cured by the subsequent removal from the homestead, whether such removal was temporary or permanent. The validity or invalidity of the deed of trust was determinaable by the conditions existing when it was executed, and not by what occurred afterward." See, also, Hubbard v. Sage Land Improvement Co., 81 Miss. 616, 33 So. 413. This conveyance ran counter to the statute, and the statute, like a tyrant, destroyed it. G. S.I.R. Co. v. Singleterry, 78 Miss. 777, 29 So. 754.
The proof of 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 exemptionists.
For these reasons, we are of the opinion that the contention of the appellant that the judgment of the circuit court was against the law and the evidence is not well taken.
2. The appellant next insists that the defense that the deed of trust is void is not available to the appellee, because the action of unlawful entry and detainer is possessory only and the title is not involved. The answer is simple. Gardner's only claim to the possession was by virtue of a void deed of trust, one that was a nullity and not binding on appellee.
3. There is no merit in the contention of the appellant that the benefits of the statute must be affirmatively asserted, which has not been done by the husband of the appellee. No authority is cited for such contention, nor is there any merit in the contention that the appellee is estopped to assert that the deed of trust is void because she secured the credit and advances on the faith thereof. The evidence shows that neither party knew that the signature of the husband was necessary to the validity of the conveyance. No request is shown to have been made of the husband to sign the instrument. He never had an opportunity to sign or exercise his veto, and it is not shown that Susan made any representations which could have deceived Gardner. She simply signed on the dotted line as he requested. There is no estoppel, legal or equitable, in this case.
Affirmed.