Jarvis v. Armstrong , 94 Miss. 145 ( 1908 )

Harper, Special Judge,

delivered the opinion of the court.^* In June, 1904, one J. O. Armstrong purchased certain lots In the town of New Albany, Miss., for which he agreed to pay $800, paying $25 cash and giving his notes for the remainder. He was unable to meet these notes as they fell due, and at Armstrong’s request they were taken up by appellant, Jarvis. Later Armstrong decided to build a house on these lots, and contracted with one Reed to construct the same; but, as he had no money, it was agreed between Armstrong and Reed and appellant, Jarvis, that Jarvis would guarantee the payments therefor as they fell due, and in accordance with said agreement Jarvis did pay for the construction of the house for Armstrong. About January 1, 1905, Armstrong and his family moved into and occupied the house. While so occupying it, in April, 1905, Armstrong executed a deed of trust to secure Jarvis for the sum he had advanced to pay off-the notes due on the lots and the amount paid out by Jaiwis to Reed for constructing the house. This deed of trust recites that it was for the purchase money of the house and lot; but the wife, Mrs. Della Armstrong, did not join in this deed of trust. Some time afterwards Armstrong died, and Mrs. Della Armstrong and his children filed this bill to cancel the deed of trust as a cloud upon their title. Whereupon the defendant, Jarvis, answered, setting up the foregoing facts, and, making his answer a cross-bill, asked a foreclosure ■of his mortgage. To this the appellees, Mrs. Armstrong and .her children, demurred specially. The demurrer was sustained .as to so much of the demand as arose out of the payment for building the house, and was overruled as to that part of the •demand that arose from the payment of the notes for the purchase money of the lots, from which ruling the cross-complain.ant, Jarvis, appealed to this court

It has been repeatedly held by this court that a deed of trust .given to secure the purchase money of a homestead is valid without the signature of the wife. If that be true, we can see no good or sufficient reason why the same rule should not equally apply as to money advanced to build the very house converted into a homestead. The money, while it may not be technically purchase money, creates and brings into existence the very thing that becomes the homestead. Every reason advanced for the protection of the purchase money as against a homestead right •applies with equal force and effect to money used to construct the house; that is, to create and bring into existence the very •subject claimed as' a homestead. Until such claims are satisfied, homestead rights cannot attach as against them.

The decree of the lower court is reversed, and the cause is remanded, to be proceeded with in accordance with this opinion.

Reversed*

* Fjoetchee, J., being disqualified in the case, recused himself and Wm. R. Harper, Esq., a member of the supreme court bar was appointed and presided in his place.