From Casetext: Smarter Legal Research

Lackey v. Harrington

Supreme Court of Mississippi, Division B
Feb 1, 1932
139 So. 313 (Miss. 1932)


No. 29720.

January 18, 1932. Suggestion of Error Overruled February 1, 1932.


Widow, redeeming her interest from tax sale, had right against the other tenants to occupy property as homestead while widow, regardless of source from which cotenant's title was derived (Code 1930, section 1412).


Statute giving widow right to occupy homestead during widowhood must be liberally construed.


Widow, redeeming her interest in homestead from tax sale, acquired full rights conferred by statute, giving her right to occupy homestead during widowhood.

APPEAL from circuit court of Washington county. HON. S.F. DAVIS, Judge.

Wynn Hafter, of Greenville, for appellant.

Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood, as long as it is occupied or used by the widow, unless she consents.

Sec. 1412, Code of 1930.

Nor shall any property be exempt from sale for nonpayment of taxes or assessment.

Sec. 1775, Code of 1930.

Such conveyance shall be attested by the seal of the office of the chancery clerk and shall be recordable when acknowledged as land deeds are recorded, and such conveyance shall vest in the purchaser a perfect title with the immediate right of possession to the land sold for taxes.

Sec. 3272, Code of 1930.

One who acquires through a valid tax sale an interest in homestead property, which property is occupied by a widow as a homestead is not barred from partition, where said widow refuses to agree to a partition or to a sale for partition.

It is absolutely necessary, in order to enforce the payment of taxes, that the citizens of this state who are the prospective purchasers of lands offered for sale for the nonpayment of taxes be assured as completely as possible that they are getting good title when they make such a purchase. Anything that militates against this assurance will strike at the very roots of the source of the revenue which supports our state government.

Section 1412 does not apply to a case where the petitioner acquired his interest in the property through a tax sale, rather than by descent along with the other heirs and along with the widow who is resisting the partition.

It cannot be called unjust and unfair to the helpless to say that a widow must pay the taxes on property she has inherited, even though it be her homstead.

Percy Bell, of Greenville, for appellees.

There is nothing sacred about the right of a tax purchaser. He purchases at a tax sale and knows, or should know, that the validity of his sale depends upon a number of circumstances. When he purchases the property which is descended to a widow and which she desires to occupy as a homestead and acquires the interest therein of one child, the widow and other children having redeemed from a tax sale, he takes his own risk and buys with a full knowledge of the law. His title to his one-fourth is not in any wise jeopardized by her occupancy, and it seems incredible that a purchaser at a tax sale should have any more right than the child whose interest he purchased.

Should the position of appellant be sustained, it would mean that section 1412 would be of no force whatever, because any adult child could permit the sale of its interest for taxes and the roof would be sold from over the head of the mother. The Legislature was endeavoring to protect the helpless in enacting section 1412, and the rights of a widow cannot be destroyed by a tax purchaser.

This cause was tried in the county court on an agreed statement of facts as follows:

"It is agreed by and between the parties to the above styled cause, that the facts pertinent to said cause are as follows, to-wit: That the petitioner herein, R.P. Lackey, is a resident of Washington County, Mississippi, and over twenty-one years of age; that the defendant, Emma or Minnie Harrington, is a resident of Washington county, Mississippi, and has been decreed to be of insufficient mentality to transact business; that the defendants, Mary Elizabeth Harrington and Thomas Harrington, are nonresidents of the state of Mississippi, and that their last known address was St. Louis, Missouri, and that their street address is unknown to the petitioner, the said petitioner having exercised due diligence to ascertain said street address; that your petitioner and the defendants are joint owners by virtue of a final decree in the case of Minnie Harrington et al. v. R.P. Lackey et al., rendered in the chancery court of Washington county, Mississippi, at the October, 1930, term, of the following described property, situated in the city of Greenville, county of Washington, state of Mississippi, to-wit: The south fifty (50) feet of lot three (3) and four (4) in block eleven (11) of the third (3rd) addition to said city, and that, by virtue of said final decree, your petitioner owns an undivided one-fourth interest in said property; and that each of the defendants herein own an undivided interest, one-fourth interest, in said property, the three-fourths (3/4) interest having been redeemed from said tax sale under said decree. That the petitioner herein, R.P. Lackey, is the vendee of one D. Seward, who purchased the whole of the above described property at the tax sale held by the sheriff of Washington county on the 5th day of April, 1926, the taxes on said property for the year 1925 not having been paid; and that the title purchased by the said D. Seward at said tax sale matured in said D. Seward. That Emma or Minnie Harrington is the widow of Thomas Harrington, and with her children, inherited the property in question from her said husband, and that it constitutes and is her only home. That she is not willing for it to be divided or partitioned or sold for partition. That she has no other home, and is now living in said home, having moved into said home after the petitioner herein had taken peaceable possession, under his tax deed; said property, at the time petitioner took possession, having been occupied by a tenant of said Emma or Minnie Harrington, who moved at the petitioner's request. That Emma or Minnie Harrington is unwilling to allow the petitioner to continue to live in said house; and that he is, at the present, and has been since she returned to said house, living there against her wishes and over her protest."

There is presented for decision the question as to whether section 1412, Code of 1930, applies to a suit where a purchaser at a tax sale acquires an undivided interest as against a widow and her right to occupy the property during her widowhood, the purchaser at such tax sale not being a descendant or heir of the deceased owner.

Section 1412, Code of 1930, reads as follows:

"Exempt property not to be partitioned in certain cases. — Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood, as long as it is occupied or used by the widow, unless she consent."

The widow, having redeemed the property so far as it affects her rights, has title against the other tenants to occupy same as a homestead, so long as she remains a widow, regardless of the source from which the title of the cotenants is derived. The statute giving the widow the right to occupy the homestead during her widowhood is to be liberally construed, and serves a beneficial public purpose.

We will not ingraft any exceptions upon the statute impairing the widow's rights. It is true that property is not exempt from taxation, and a sale for taxes, where valid and unredeemed for the statutory period, will confer title to a homestead. But, where the widow redeems her interest in the property, as she may do, she acquires, through such redemption, the full right conferred by the statute.

The county court having so held, and the judgment of the county court having been affirmed by the circuit court on appeal, the judgment is affirmed.


Summaries of

Lackey v. Harrington

Supreme Court of Mississippi, Division B
Feb 1, 1932
139 So. 313 (Miss. 1932)
Case details for

Lackey v. Harrington

Case Details

Full title:LACKEY v. HARRINGTON et al

Court:Supreme Court of Mississippi, Division B

Date published: Feb 1, 1932


139 So. 313 (Miss. 1932)
139 So. 313

Citing Cases

Solomon v. Solomon

Section 1412 of the Mississippi Code of 1930 does not prevent cotenants who are not descendants or heirs of…

Bohn v. Bohn

The homestead cannot be partited or sold for a division of the proceeds during her widowhood, but, until the…