Lindsey v. Holly , 105 Miss. 740 ( 1913 )

Reed, J.,

delivered the opinion of the court.

This is an action of ejectment, brought by appellants, .husband and wife, to recover of appellees the possession of a tract of land containing one hundred and twenty acres in Attala county. It is claimed that the land was the homestead of appellants,, when they executed the deed conveying it to appellee John F. Holly, and that Mrs. Lindsey was then a minor, and therefore her act in joining in the deed for the purpose of consenting to the sale of the homestead was invalid. Counsel for appellants and appellees in their briefs discuss only the question whether the homestead had been abandoned at the time of the execution of the deed. They appear to agree that, as the wife was under legal age, her act in executing the deed did not make it valid, if the property was a homestead and had not been abandoned.

Appellant W. N. Lindsey owned the tract of land in question when he married in December, 1902. Shortly after this marriage and his occupancy of the land as a homestead, and on or about December 18, 1902, he was arrested and taken to the county jail. There he was imprisoned until March, 1903. During his imprisonment his wife moved from the land to her father’s home. There he went to reside with her when he was liberated. He never returned to live on the land he owned. On October 17, 1903, the property was sold and conveyed to John F. Holly. It appears from the-record that he only actually occupied the land as a homestead for a few days in December, 1902. When first examined on the trial of the case he testified as follows regarding his removal from the home: “Q. On the 17th day of October, 1903, you and your wife deeded the land to Mr. Lindsey? A. Mr. Holly. Q. You moved away, and have never been back there since? A. We was not there when we deeded the land to Mr. Holly. Q. Where were yon living at that time? A. At my father-in-law’s. Q. When Holly got the land, yon were not living there? A. No, sir; I was living over, about a mile, at Mr. Hunt’s. Q. And your wife'was living up there with you? A. Yes, sir.” He states that about in July he went to the land, and plowed and planted some corn, and he also got out some palings. Upon being recalled, after the defendants had rested, Mr. Lindsey testified that it was not his intention to stay at his father-in-law’s house when he went there. He said: “I did not intend to stay there no longer than possible. I intended to go back to the place just as soon as I got something to live on.” Mrs. Lindsey testified that she lived in 1903 at her father’s, and that she never returned to the land owned by her husband. She also stated that her husband got out some palings to make a garden, and planted some corn.

Appellee John F. Holly testified that Mr. Lindsey requested him to purchase the land, and that he bought' it at Mr. Lindsey’s own price. Testifying relative to what occurred at the time of the purchase, and what Mr. Lindsey said in reference to the land and his continuing to live on it, Mr. Holly said: “Q. What did Mr.' Lindsey say to you about this land at the time you purchased it? A. He came to me up there, and wanted to know if I would buy the place, and I told him that I was land poor and in debt, but if he wanted to- sell it I would buy it. Q. What did he say about living on it, if anything? A. He told me that he was going to sell it, and that he was not going to live on it, for the way the boys treated him about the crossroads scrape — he was not going to live on it. He was going to sell it for what he cóuld get for it, and he asked me what I would give him for it, and I told him that I would give him one hundred and fifty dollars. He said that if I would get up one hundred and fifty-five dollars I could have it. Q. Did he say anything about bis wife living on it? A. He said bis wife was not going- to live on it.”

Tbe evidence clearly shows that Mr. Lindsey never returned to take up bis residence on bis land after be was released from prison, and it does not appear that be made any effort to recover tbe land or to re-enter tbe possession thereof until tbe bringing of tbe present suit, some seven years after be conveyed tbe land. After tbe defendants bad finally rested, tbe plaintiffs, appellants here, moved tbe court to exclude the testimony offered by defendants and direct tbe jury to find for them, because tbe evidence showed that they bad occupied tbe land as a homestead and tbe defendants bad failed to show any proof of abandonment thereof. This motion was overruled, tbe trial court deciding tbe question of abandonment, and tbe necessity for tbe wife joining in tbe deed, because tbe property bad not been abandoned, was for tbe jury.

At tbe time of tbe execution of tbe deed, bad the homestead been abandoned, so that it was not necessary for tbe wife to join in tbe deed thereto in order to make tbe conveyance valid? Section 2157 of tbe Code of 1906 reads: “Ceasing to Beside on Homestead Benders It Liable. Whenever the debtor shall cease to reside on bis homestead, it shall be liable to bis debts, unless bis removal be temporary, by reason of some casualty or necessity, and with tbe purpose of speedily reoccupying it as soon as tbe cause of bis absence can be removed.” W. N. Lindsey did not voluntarily leave bis homestead. He was required to go because of bis arrest and imprisonment. He ceased to reside on tbe homestead out of necessity, arising from bis confinement in jail. So long as be was in prison and could not reside on bis homestead, it cannot be said that be lost bis right thereto by reason of bis having abandoned it. Abandonment implies a voluntary act, and there could be no voluntary act by him amounting to an abandonment under the circumstances.

Now, did lie abandon the homestead after bis release from prison? Does the testimony in this case show abandonment, so that his homestead right is lost, and that it was unnecessary for his wife to join in the conveyance of the land? In the case of Salter v. E mb rey, 18 South. 373, it was decided: “Where a husband, owning a homestead, took up his residence in another state, at the direction of his employer, but, after being discharged, did not return, such removal constituted an abandonment, and was not within Code, section 1981, providing for the retention of the homestead when the removal was temporary, and by reason of some necessity.” The opinion, delivered by Cooper, C. J., shows that John T. Salter was the owner of land in this state; .that it was necessary for him to reside in Memphis, because of his employment of roadmaster of a railroad; that when he was discharged by his employer he moved to Arkansas to seek employment, and there remained until his death, which resulted from lingering illness; that while in Memphis and in Arkansas he often expressed a resolution to-return to his home in Mississippi, but failed to do so because of pecuniary inability; that his wife was always anxious to return to her home in Mississippi, and would not have left it, but was forced to do so because of her husband’s removal to Memphis. Mr. Salter executed a deed of trust on the property. He was not joined in it by his wife. It was claimed that the former homestead; included in the land in Mississippi, was not conveyed by that deed. It was decided that, on the facts stated “there was an abandonment of the homestead by the husband, who owned the land, and who, as the head of the family, was entitled to select the domicile.”

Abandonment is a fact to be proved. From the statute it seems that ceasing to reside on it without the purpose of speedily reoccupying it as soon as the causé of absence can be removed amounts to an abandonment. We believe in this case that all the facts and circumstances show that the home was abandoned by Mr. Lindsey. We do not think that the trial conrt erred in overruling the motion filed by appellants for the conrt to instruct the jury to find in their favor, and in deciding that the evidence presented a question of fact for the jury’s decision. We note the statement made by. Judge Taebell in delivering the opinion in Campbell v. Adair, 45 Miss. 170, to the effect that the waiver of forfeiture of the homestead right should be declared only upon clear and decisive proof of an intention to wholly relinquish and abandon such right, accompanied by a removal from the premises. It seems to us that the facts in this case, considered in the light of the decision in the •ease of Salter v. Embrey, supra, present such proof.

It is contended that the case should be reversed because the court erred in granting the instruction for defendants, appellees here, to the effect that, unless they should find by “preponderance ofi alLthe testimony in this case that, at the date plaintiffs executed their deed to the defendant, they intended to speedily reoccupy the; lands mentioned in the suit, you are directed to return a verdict for the defendant.” From the whole record, it is apparent to us that the verdict is right on the facts of the case. In truth, it seems to' us that the trial court would have been justified in giving a peremptory instruction to find for -appellees. Therefore we conclude that there is not error in the instruction sufficient to require a reversal of the case.

Affirmed.'