Summary
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.
Summary of this case from Cliett v. First Nat. BankOpinion
No. 32836.
November 1, 1937.
1. HOMESTEAD.
Trust deed executed by husband on 63-acre tract was not void on ground that tract constituted a "homestead," where, though tract had formerly been a homestead, husband and wife at time of execution of trust deed lived on a 188-acre tract to which they held title subject to a trust deed, and where removal from 63-acre tract was not occasioned by any casualty or necessity, and there was nothing to indicate that at time of removal there was any intention to return (Code 1930, section 1776).
2. HOMESTEAD.
Though a declaration as to a homestead as provided by statute and declaration's recordation are not required in all cases, it is convenient form of giving notice of purpose to return, though parties may not be actually residing thereon (Code 1930, sections 1767, 1768).
3. HOMESTEAD.
A husband has right to select homestead and to move from one and select another.
4. HOMESTEAD.
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 (Code 1930, section 1776).
APPEAL from the chancery court of Itawamba county. HON. JAMES A. FINLEY, Chancellor.
I.L. Sheffield, of Fulton, for appellants.
Section 1778 of the Code of Mississippi of 1930 provides that 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. This section does not provide that they must be living upon the homestead at the time the mortgage is executed.
Collins v. Bounds, 82 Miss. 447, 34 So. 355; Hubbard v. Sage Land Improvement Co., 33 So. 413; Massey v. Womble, 69 Miss. 347, 11 So. 188; Johnson v. Hunt, 79 Miss. 639, 31 So. 205; Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435; Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 48 So. 516.
Not even the false or fraudulent statement of the husband with reference to the status of the homestead will bar the wife of her rights therein. Her rights do not depend upon mistaken or false statements by the husband but upon the fact of his being the head of a family and using the premises as a home.
Hinds v. Morgan, 75 Miss. 509, 23 So. 35.
The court rendered judgment in personam against J.W. Ritter for $665.92, alleged as a balance due on notes made by him to the bank and for the further sum of $500, for the use and occupation of the land sued for. The execution of the note, except the one secured by the trust deed and given by J.W. Ritter for $162, was denied, and especially the execution of the alleged note by Mrs. L.V. Ritter. No proof was introduced showing that she signed or authorized any one to sign this note for her and judgment should not have been rendered for that sum.
Appellants offered to prove by the witness, G.W. McIntosh, as well as other witnesses, that it was the intention of Ritter to return to his old home, to the sixty-three acre tract of land, and counsel for appellee objected whereupon the court sustained the objection. This was the very gist of the defense. It was certainly competent. The authorities already cited herein amply support this contention. The same witness was asked the question of whether or not Ritter owned an equity in the land deeded by McIntosh to him in 1929 and he was asked the market value of this land, and counsel objected whereupon the court sustained. This evidence was competent to show that the Ritters really at no time owned any interest whatever in the McIntosh land. The legal title was in the trustee for the Federal Land Bank of New Orleans and another mortgage was on the McIntosh land secured to McIntosh in the sum of the balance of the purchase price and Ritter at no time had any equity in the land and, therefore, under no theory could it be argued that he owned the land where he lived from 1926 to 1931. He could not homestead land not owned by him. I submit it was material and the witness should have been permitted to answer.
The evidence demonstrates that Ritter during all the time he lived on the McIntosh land pastured thirty or forty acres of the McIntosh land and in the same enclosure some twenty acres owned by Grimes and eight or ten acres of the sixty-three acre tract, his homestead. For this reason it was his homestead and the court finding that it was not was clearly in error.
It is elementary and needs no citation of authorities that this court has repeatedly construed the exemption laws of the State favorable to the exemptionist. Any doubts arising either as a matter of law or from evidence should be resolved in favor of the exemptionist in order to protect and perpetuate the homestead with its sacred surroundings.
Mortgage against home without signature of wife is void.
45 A.L.R. 415; Collins v. Bounds, 82 Miss. 447; State National Bank v. Lyons, 52 Miss. 181; Howell v. Bush, 54 Miss. 437; Cummings v. Busby, 62 Miss. 195; Duncan v. Moore, 67 Miss. 137, 7 So. 221; Pounds v. Clark, 70 Miss. 263, 14 So. 222; Hubbard v. Sage Land Improvement Co., 81 Miss. 616, 33 So. 413; Tomlin v. Combs, 21 So. 782.
C.R. Bolton, of Tupelo, for appellee.
The evidence shows without dispute that J.W. Ritter and his family had purchased 188 acres of land from McIntosh in 1926 and had moved on to this land leaving their former residence on the 63 acres of land. It is shown from the testimony of both Mr. Ritter and Mrs. Ritter that the house in which they lived on the 63 acres was a very poor house and the house to which they moved on the 188 acres was a good house. There was also testimony about Ritter having made permanent improvements on the 188-acre homestead. It is undisputed that Ritter and his family were living on the 188-acre tract of land at the time the deed of trust was given with the recital therein that the 63 acres did not form part of his homestead, and that he continued to live on the 188-acre tract until 1931, more than two years after the deed of trust was given to the Bank of Saltillo.
This is not a case of fraudulent statement of the husband against the rights of the wife as might be the case where he actually resided on the tract of land and he declared it not to be his homestead. In this case, he did reside on other land when he declared the 63 acres not to be his homestead.
The wife has no property right in the homestead but merely a veto power and the right of selection of the homestead belongs solely to the husband.
Wiseman v. Parker, 73 Miss. 378; Rutherford v. Jamieson, 3 So. 412.
It cannot be said that the law court was in error in holding that the 63 acres was no part of his homestead and that the deed of trust given by J.W. Ritter to the Bank of Saltillo was valid.
With reference to the judgment rendered against Mrs. L.V. Ritter, the note signed by her was offered in evidence and made an exhibit. The execution of the note was not denied by Mrs. Ritter when she was on the witness stand. The execution of this note was not denied under oath by Mrs. Ritter in the answer and therefore all that was required was to introduce the note signed by Mrs. L.V. Ritter and the signature was presumed to be genuine unless denied under oath which was not done.
V.S. Whitesides, receiver for the Bank of Saltillo, of Saltillo, Miss., filed a bill in the chancery court of Itawamba county against J.W. Ritter and his wife, L.V. Ritter, seeking to have canceled and removed all claims, liens, or clouds against the title to certain lands described in the bill, and for a judgment in personam for certain amounts due the bank, and also for the amount due for the use of said lands subsequent to the foreclosure of the deed of trust.
J.W. Ritter owned 63 acres of land in the year 1926, and prior thereto he and his wife had occupied it as a homestead. In the latter part of the year 1926, J.W. Ritter purchased other land containing 188 acres, on which there was a better residence than on the 63 acres, and moved to the newly-acquired land, paying therefor at the time of purchase, $300, and later paying $100. While living on this 188-acre tract, J.W. Ritter executed a deed of trust on the 63-acre tract of land to the Bank of Saltillo, which was duly signed by him but not by his wife. In this deed of trust it was stipulated, following the description of the land, as follows: "All the above land being in Itawamba County, State of Mississippi, and being recorded in Deed Records of said County and State in Book 79, page 267, the above being no part of my homestead. I have 160 acres other than this. This is a first lien on the above described property."
Thereafter, on November 24, 1932, J.W. Ritter and his wife executed to R.S. Sheffield, as trustee for I.L. Sheffield, a deed of trust on the lands therein described, which instrument was duly recorded, and which, as alleged in the bill, was given to secure attorneys' fees to contest the rights of the complainant.
The deed of trust in favor of the Bank of Saltillo was foreclosed in 1932, and the bank became the purchaser at the sale.
The bill prayed for a cancellation of the claims of the appellants and Sheffield, and for a confirmation of the title of the bank under the trustee's deed to it.
It was contended by appellants, J.W. Ritter and his wife, that the deed of trust to the Bank of Saltillo was void because the 63-acre tract constituted their homestead, and L.V. Ritter, the wife of J.W. Ritter, did not sign it, and that the statement of J.W. Ritter, written in the deed of trust and above set forth, did not bind either him or his wife, since the land was their homestead. It was further contended that the appellants did not acquire the 188-acre tract because the title was in the trustee, the debt not having been paid, and that it was subsequently reconveyed to the grantor.
From these statements, it will be observed that the appellants had removed from their original homestead to another tract of land not connected with said 63 acres, and that title to the 188-acre tract had been acquired by them subject to the deed of trust to Sheffield, and that said parties continued to reside upon the tract for a period of five years, during which period the deed of trust to the bank was executed.
In section 1776, Code of 1930, it is provided that whenever a 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. The removal of the appellants from the homestead was not occasioned by any casualty or necessity, and there is nothing to indicate that at the time of the removal it was the intention of Ritter and his wife to return and occupy it as a homestead. All the facts point to the contrary, and the chancellor was authorized to find from the proof, as he did find, that the 63-acre tract, at the time of the execution of the deed of trust to the bank, did not constitute a homestead. If the appellants had desired to return to the 63-acre tract as their homestead, it was within their power to file a homestead declaration under sections 1767 and 1768 of the Code of 1930. While a declaration as to a homestead and its recordation are not required in all cases, it is a convenient form of giving notice of the purpose to return, although the parties may not be actually residing thereon. Under the law, the husband has the right to select the homestead, and to move from one and select another, and the recital of J.W. Ritter in the deed of trust was sufficient evidence of his selection of a new homestead, when he and his wife were, in fact, occupying other land for living purposes. The deed of trust to the bank being of record, and containing the stipulations mentioned, prevent the parties from acquiring rights therein except in subordination to the rights of the bank thereunder.
We find no reversible error in the proceedings, and the evidence warrants the decree as to the amount of the debt, and for the use of the 63-acre tract.
Affirmed.