Opinion
No. 31069.
February 19, 1934. Suggestion of Error Overruled March 19, 1934.
1. HOMESTEAD.
Wife held not entitled to claim property sold on execution as her homestead where at time of sale residence of husband and other members of family was in another county where husband had purchased a home and husband and wife had not legally separated.
2. HOMESTEAD. Actual residence on and occupation of land as home by family and "head of the family" are essential to give it character of homestead, except as to persons over sixty years of age, or where absence is temporary only.
Ordinarily, a "family" must consist of at least two persons who live together in that relation, and, when the law makes reference to the "head of the family," it means one of the persons composing the family and not two or more.
3. DOMICILE.
Generally, husband is "head of the family," and has right to choose or establish matrimonial home or domicile.
APPEAL from Chancery Court of Prentiss County.
Geo. T. and Chas. S. Mitchell, of Tupelo, for appellants.
The question involved in this case is whether or not there was an abandonment of the property in question as a homestead of the parties. The law is well settled that abandonment rests upon intention and unless a person actually intends to abandon, there can be no abandonment.
1 C.J., Abandonment, par. 7, sections 8 and 9; R.C.L., Abandonment, section 5.
Before there can be an abandonment, there must exist the intent to abandon coupled with some clear and affirmative act pointing conclusively to an abandonment.
This case must be determined with reference to the conduct of the parties subsequent to May 13, 1931, and the character of the property in question as a homestead or not must be determined with reference to its treatment subsequent to May 13, 1931.
It is our understanding of the law that even where the head of a family has abandoned certain property as his homestead, yet if said property is attempted to be levied upon under a writ of execution and sold, if that party moves back upon the premises and establishes same as his homestead before the consummation of the sale the right to the homestead exemption immediately exists.
Woods v. Bowles, 46 So. 414; Trotter v. Dobbs, 38 Miss. 198; Lesley v. Phipps, 49 Miss. 790.
W.C. Sweat, of Corinth, for appellee.
Even though she had actually lived in this house, Mrs. Patrick could not have held this property as a homestead while her husband and family resided in Tupelo, where he was engaged in business. The husband is the one who has the right to select the residence and domicile; and, as long as the husband and wife live together, the domicile of the husband is that of the wife. They cannot have two separate homesteads.
Am. L. Inst. Restatement, Conflict of Laws (Proposed Final Draft, No. 1, sec. 29); Land v. Land, 14 S. M. 99; Hairston v. Hairston, 27 Miss. 794, 61 Am. Dec. 530; McHenry v. State, 119 Miss. 289, 80 So. 763; 19 C.J. 414; 20 C.J. 69; Weisinger v. McGehee, 160 Miss. 424, 134 So. 148; Thompson v. Tillotson, 56 Miss. 40.
This court has, on numerous occasions, held that, where one has left his home for business reasons, even though he intends to reoccupy it at some time in the future, he cannot thereafter claim it as a homestead.
Salter et al. v. Embrey et al., 18 So. 373; Bennett et al. v. Dempsey, 94 Miss. 406, 48 So. 901.
At the time of the trial, the Patricks had no intention whatever of speedily reoccupying this property which they had claimed as a homestead, and, as a matter of fact, no intention of ever reoccupying it unless he got to the point where he could not make a living somewhere else. The court cannot presume that this contingency will happen.
Lindsey v. Holley, 105 Miss. 740, 63 So. 222; Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 So. 227; Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87.
Argued orally by Chas. S. Mitchell, for appellant, and by W.C. Sweat, for appellee.
In 1917 the wife owned a house in Prentiss county which was occupied by herself and husband and children as their homestead. During that year the husband decided to move to Lee county and there to permanently establish himself in business. This was done, and some months thereafter the family joined him in Lee county. Later a residence was purchased in Lee county which was occupied by the husband and his family as their home for several years. The house in Prentiss county was still owned by the wife, but the proof is that up to and including the time next hereinafter mentioned the home of the family was in Lee county, not in Prentiss county.
In 1932 a judgment, obtained against the husband and wife in Lee county, was enrolled in Prentiss county, and an execution thereunder was levied upon the property which formerly had been the homestead in that county. After the rendition of this judgment, but before the issuance of execution, the wife returned to Prentiss county and occupied a room in the aforesaid house owned by her, and, on the day of the sale under the execution, she appeared and gave notice that she claimed the property as her homestead. Her husband had on several occasions spent a day or two at a time with her at said residence in Prentiss county, the remainder of the family remaining at all times in Lee county, but the husband as a witness admitted that he himself did not expect to move back to Prentiss county except when he could not make a living somewhere else. Without going into further details, we may say that there is ample proof to sustain the finding of fact by the trial court that at the time of the sale the residence and domicile of the husband and members of the family, other than the wife, was in Lee county.
The appeal here is bottomed upon the contention that, although the proof shows that the husband and the other members of the family reside in Lee county, the wife had the right to go to Prentiss county and there take up her residence in the property there owned by her and assert a homestead exemption therein without regard to what her husband and the remainder of the family did. It is admitted by both husband and wife that they are living together as husband wife, and nothing is asserted by either of them which would in law confer a right to live separately because of any marital misconduct or the equivalent thereof on the part of either of them.
The authorities are in uniform agreement that ordinarily a family must consist of at least two persons who live together in that relation, and that actual residence on and occupation of the land as a home by the family are essential to give it the character of a homestead, save as to those over sixty years of age or where the absence is temporary only. Occupancy alone is not sufficient, but, in addition to mere occupancy, there are the elements of permanent residence on the land by the head of the family, and, when the law makes reference to "the head of the family," it means one of the persons composing the family, not two or more. Save in exceptional cases, of which the case here before us is not one, the husband is the head of the family and, as such, has the right to choose and establish the matrimonial home and domicile. Tanner v. Tanner, 111 Miss. 460, 467, 71 So. 749. This was said by our court long after the enactment of laws here removing the disabilities of the wife in the matter of her separate property. As remarked by the Supreme Court of Georgia, in Broome v. Davis, 87 Ga. 584, 13 S.E. 749, "in this state, notwithstanding his reduced importance as a domestic factor, the husband is still the head of his family." See the many cases gathered in the notes, 29 C.J., p. 795 et seq., and 30 C.J., pp. 510-512.
It follows that in this case the home of the wife was that of her husband, which was not this property, but in Lee county.
Affirmed.
Anderson, J., takes no part.