noting that the cotenant's homestead interest only applied to the interest owned — in that case, a three-fifths undivided interest in the propertySummary of this case from Wisner v. Pavlin
November 20, 1939.
Where owner of one-half interest in house and lot occupied by co-owner died leaving as his heirs co-owner with family and four other children, and on death of co-owner, his widow and children continued to occupy house, heirs of original owner of one-half interest were entitled to partition, notwithstanding statute providing that exempt property descending to widow with others is not subject to partition during widowhood, since statute applied only to 3/5 interest of co-owner at time of his death. (Code 1930, sections 1412, 2920.)
APPEAL from the chancery court of Bolivar county; HON. R.E. JACKSON, Chancellor.
Alexander, Sparkman Pace, of Cleveland, for appellant.
Section 1412 of the Mississippi Code of 1930 does not prevent cotenants who are not descendants or heirs of the deceased owner, their cotenant, of an undivided interest in property, from partitioning property as against the widow of deceased cotenant.
Section 1412, Code of 1930; Lackey v. Harrington, 162 Miss. 512; 29 C.J., Homesteads, secs. 167 and 417; Thorn v. Thorn, 14 Iowa 54, 81 Am. Dec. 451; Peets v. Wright (S.C.), 109 S.E. 649; Clements v. Long, 51 Tex. 150; Masillon Engine Co. v. Barrow (Texas), 231 S.W. 368; McGrath v. Sinclair, 55 Miss. 89; Lewis v. White, 69 Miss. 352.
Section 1412 of Code should be construed in connection with Section 2920 of Code.
Construction of Section 1412 by lower court violates Section 14 of Article 3 of the Constitution of the State of Mississippi and also Article V of Amendments to the Constitution of the United States of America.
Shands, Elmore, Hallam Causey, of Cleveland, for appellee.
Facts are not in dispute which bring the case within Section 1412.
Until 1932 this court was not called upon to construe this section in any case except where the deceased husband owned the entire interest in the lands which descended from him to his widow and children and in such cases the partition was sought against the widow by either a child or a vendee of a child, or a person in privity with a child. Every announcement of the court with reference to and upon Section 1412 is confined to cases where the foregoing situation and facts existed as are the cases cited in this portion of this brief. The cases cited are attempts at partition between the widow and children or their vendees. No situation and none similar in fact or principle to the case at bar was presented to the court for consideration or decision prior to 1932 when the court spoke in the Lackey case, 162 Miss. 512. In view of the above, we call the court's attention to the following cases, which we believe clearly and fully state the intent and purpose of the legislature in the original enactment and the consistent re-enactment of what is now said Section 1412:
Moody v. Moody, 86 Miss. 323; Dickerson v. Leslie, 94 Miss. 627; Tyser v. McCain, 113 Miss. 776; Wright v. Coleman, 137 Miss. 969; Lackey v. Harrington, 162 Miss. 512.
Appellants concede and rightfully so that Joe Solomon, deceased, husband and father of appellees, had a homestead in his undivided one-half interest in the property involved herein. Having such a homestead it constituted exempt property belonging to the said decedent.
Appellees say that the case of Lackey v. Harrington, 162 Miss. 512, decided by Division B of this court on January 18, 1932, and in which a suggestion of error was overruled on February 1, 1932 is squarely in point for the appellees and by the decision in which case the decree of the lower court should be affirmed.
Mrs. Solomon has met every requirement of the statute as to being a widow and as to living upon and using the property as her home. She has no other home. Joe Solomon's share of the property was unquestionably his exempt property. In this state of the case, if it is immaterial under the Lackey case from whence came the title of the co-tenants, where the widow otherwise complies with the statute, then Mrs. Solomon is entitled to use and occupy this property as long as she remains a widow free from any partition thereof against her consent.
The complainants admit that Joe Solomon had and acquired a homestead interest in his one-half of the property during the lifetime of J.M. Solomon. Joe Solomon married and he with his wife, Mrs. Solomon, and their minor children, lived in, used and occupied the property of J.M. Solomon before his death. Appellants had no right, title, or interest in this property until the death of J.M. Solomon. Upon the death of J.M. Solomon complainants' rights arose. Joe Solomon's interest had already become fixed and his one-half interest therein was property exempt to him as his homestead. The rights of complainants to the property were acquired by them subject to those of Joe Solomon. Upon the death of Joe Solomon, under the facts in this record, Mrs. Solomon has the right to hold his exempt property, to-wit, at least his one-half interest, free from partition or sale from partition during her widowhood and as long as she occupies or uses it, unless she consent to the partition. The statute is fully complied with.
J.M. Solomon and his son, J.L. Solomon, owned a house and lot in Cleveland, Mississippi, each owning a one-half interest therein. J.L. Solomon was married and lived in this house. J.M. Solomon died in 1930, leaving as his heirs J.L. Solomon and four other children. J.L. Solomon and his family continued to occupy the house until 1933, when he died, and his widow and children continued thereafter to occupy it as their home. The four surviving children of J.M. Solomon sued the widow and children of J.L. Solomon for a partition of the property in kind or a sale therefor. The widow objected to this partition and the court below declined to grant it.
Section 2920, Code of 1930, empowers cotenants of land to obtain a partition of it by decree of the chancery court. Section 1412 of the Code provides:
"1412. 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".
Under the first of these sections, the appellees are entitled to a sale of this property for a partition unless deprived thereof by the latter section because of the death of J.L. Solomon leaving a widow and other heirs to whom his interest in the property descended.
The property with which this section deals is that owned by a decedent at the time of his death, and which was exempt from sale under execution for the payment of his debts. What J.L. Solomon here owned at the time of his death was not the whole interest in this house and lot but only a three-fifths interest therein, so that this three-fifths interest is all of the property to which the statute applies. The exemption of this three-fifths interest in the property from subjection to the payment of Solomon's debts resulted from the fact that he occupied it as a homestead. This occupation of the property by him as a homestead did not enlarge his interest therein as against his cotenants, and it was at all times while he lived subject to partition at the suit of his cotenants. This right of his contenants is not expressly withdrawn from them by Section 1412 because of Solomon's death, leaving a widow and other heirs, and there is nothing in it or the purpose which it seeks to accomplish that requires it to be so construed as to withdraw by implication this right of partition from J.L. Solomon's cotenants.
Lackey v. Harrington, 161 Miss. 512, 139 So. 313, 314, does not require a contrary holding. In that case, a decedent left a widow and children, to whom a city lot which was exempt from execution for the payment of his debts descended. The lot was sold for taxes and the widow redeemed her interest therein from tax sale. The purchaser at the tax sale sold his interest in the lot to Lackey who filed a bill against Harrington's widow and other heirs for partition of the property. The Court held that the bill would not lie; that the redemption by the widow from the tax sale of her interest in the lot restored her to her original right to prevent a partition thereof under the statute. The interest which the tax vendee had in the land was a portion of the interest therein owned by Harrington at his death, and which descended to his widow and children. In the light of this fact, it appears that all the Court was there called on or authorized to decide was whether the complainant who acquired this interest in the land, not from the one to whom it descended from Harrington, but at a sale for delinquent taxes, could have the land partitioned without the widow's consent. In the course of its opinion, holding that he could not, the Court said: "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 co-tenants is derived." While the language "regardless of the source from which the title of the cotenants is derived" is rather broad, it was used in connection with the case the Court was deciding and must be limited thereto.
Reversed and remanded.