Collins v. Bounds , 82 Miss. 447 ( 1903 )

Calhoon, J.,

delivered the opinion of the court.

This appeal is from a decree overruling a motion to dissolve an injunction which had been granted to Bounds and wife, restraining appellants from committing waste on a 40-acre tract of land. The sole question involved is whether or not there had been such an abandonment of the homestead as to enable the husband, without the wife’s joinder, to make a valid conveyance of part of it. The chancellor-had evidence before him, which no doubt determined his action, to the following effect: The husband made a homestead entry from the government of the United States of one hundred and twenty acres of land, which included the forty acres in controversy. He owed W. N. Collins the entry money — about $31 — which he had borrowed from him to make the entry. The dwelling house and garden and other little improvements of Bounds, including a few acres of cleared land, would have continued to have been occupied by him and his wife but for the death of his only horse, which left him imable to work his land. At this juncture his father-in-law, who lived four miles distant, offered him the use of a horse and land to cultivate, so that he might make a crop and realize enough to enable him to buy a horse and cultivate his homestead land. This offer he accepted, and he and his wife went to her father’s with this specific object, and with the express purpose to return after making and marketing the crop; and the object was accomplished, and thereupon they did return to the homestead, which they never had any intention to permanently abandon. It is to be particularly noted that on going to- the father’s they left on their premises some of their household, and kitchen furniture and effects, and farming implements and -gearing, and returned to the house, “backward and forward,” to look after them, and some cows and yearlings and hogs, and some vegetables in their garden, they had also left there. Now, while they were at their father’s, W. N. Collins came with a justice of the peace, and with a deed prepared for signature and acknowledgment, and T. A. Bounds signed and acknowledged it; but the wife refused to do so, but offered to join in a conveyance of another forty acres of the one hundred and twenty-acre entry, situated farther from the home, but Collins refused this. She also tendered to Collins the $31 he had loaned to Bounds to make the entry, and he refused that. After this the husband and wife went back to their home. It seems that there was some sort of agreement between W. N. Collins and Bounds that Bounds should convey forty of the one hundred and twenty acres entered.

In full view of the cases of Majors v. Majors, 58 Miss., 806; Moore v. Bradford, 70 Miss., 70, 11 South., 630; and Thompson v. Tillotson, 56 Miss., 36, we hold, in the case at bar, on its facts, that there was no abandonment of the homestead; that the removal from it was because of necessity and temporary, and that this ruling is consistent with the decisions above cited; and that the chancellor properly overruled the motion to dissolve the injunction.

Affirmed and remanded for such other proceedings as may he proper.