Bolen v. Lilly , 85 Miss. 344 ( 1904 )

Calhoon, J.,

delivered the opinion of the court.

The court peremptorily instructed the jury to find a verdict for the defendants in the state of case we will now set out: Bolen, on December 23, 1893, being a householder and the head of a family, owned in fee simple one hundred and sixty acres of land, in a body, and of less value than $2,000, and had his home upon it with his family. Besides, he owned an undivided one-half interest in eighty acres adjoining and an undivided one-fifth, interest in fifteen acres cornering on it, and a three-year lease of seventy-eight acres adjoining. So he then had, by 'lease, by undivided interests and in fee, three hundred and thirty-three acres of land, but was sole owner in fee of only one hundred and sixty acres, and on this he lived; and' on that -day (December 23, 1893) he conveyed by warranty deed twenty acres of this one hundred and sixty to Lilly and others, appellees, and this is the subject of this controversy. After this, and in 1895, Bolen removed from his old home, with his family, to the town of Pontotoc, where his wife, who had refused to join in the deed to Lilly and others, died in 1897. Since her death, Bolen, shortly before the expiration of the statutory bar by limitation, brought this action of ejectment for the twenty acres on the ground that the conveyance was void because of the non-joinder of his wife.

Lilly and others’ sole defense to the action is the deed of Bolen, and his partial interest in the adjacent lands, except that they seek to place this case in the category of Wilson v. Gray, 59 Miss., 525, in which the court held (Cooper, L, dissenting) that a sale of the homestead by the owner, without the joinder of the wife, was valid if made “in order to effect” a change of his residence, pursuant to his previous resolve to make the change. It is needless now to inquire whether that -decision, on the facts sought to be proved before the court then, should be applied to the testimony offered and admitted here. There evidence offered and refused to be admitted, and for which refusal there wras a reversal, was to the effect that the vendor had used the money of the vendee to purchase a home in Texas, had determined to move there, made the sale for that very purpose, and soon after did move to the Texas home. Here there was simply an offer to prove by Lilly that Bolen told him he was going to move to Pontotoc. In fact, he did not go to Pontotoc until after a year and a half, or more, afterwards, and, in fact, Lilly could not have depended on this, because he made ineffectual efforts to have Mrs. Bolen join in the conveyance. But it is.useless, as we have said, to contrast the two cases; and this is because there is conflict in the evidence, which a jury only could decide upon, and there was a peremptory instruction. Even Lilly is doubtful as to when Bolen made the statement, and Bolen testifies that he never made it, and that he never thought of moving to Pontotoc until the fall of 1895. If the mere statement of the vendor of a purpose to remove is conclusive, the statute is worthless.

Whatever may be thought or said of the ethics of this action, it is certainly true, as a matter of law, that a conveyance of the homestead, or any part of it, by the owner, without his wife’s joinder, is invalid, a void act — goes for nothing — and ejectment lies by the vendor to recover it. That the land was part of the homestead in the case before us, and that it was so regarded by Bolen, by his wife, and by Lilly and others, seems plain from this record. Hubbard v. Improvement Co., 81 Miss., 618 (33 South. Rep., 413).

There is no estoppel because the conveyance had a clause of warranty. This would nullify the statute. The whole conveyance is invalid. Connor v. McMurray, 2 Allen (Mass.), 202; Doyle v. Coburn, 6 Allen (Mass.), 72.

The land being part of the homestead, as understood by all concerned, we need not consider the lands adjoining, in which Bolen had a part interest or a leasehold; but it would be hardly within the spirit and purpose of the statute to confine the homestead to these, when it was in fact located on the one hundred and sixty acres of sole ownership.

Reversed and remanded.