Nye v. Winborn , 120 Miss. 1 ( 1919 )

Sykes, J.,

delivered the opinion of the court.

The appellee, W. C. Winborn, filed a bill in the chancery court to remove clouds from his title to eighty acres of land and to cancel a deed made to appellants by the sheriff in pursuance of a sale under an execution. An answer and cross-bill. was filed by the defendants in the court below, appellants here. In the cross-bill they ask for a decree for rent of the land in controversy. The cause was tried on pleadings and testimony, and a decree was entered in accordance with the prayer of the bill, removing the clouds from 'the title and canceling the sale under the execution. From which decree this appeal is prosecuted.

There is but one question presented for adjudication to this court, and that is whether or not the eighty acres of land in controversy was a part of the homestead of appellee. If it constituted a part of the homé-stead, then it was not subject to sale by the sheriff under the execution. If'it was- not a part, of the homestead, then there was a valid sale, and the claim of the appellants must prevail. The appellee, prior to the year 1910, had been a section laborer on a railroad which passed through Mount Olive. While engaged in this occupation, he purchased a residence in the town of Mount Olive, and he and his wife have continuously resided there since the date of purchase. A year or two later he quit working fpr the railroad company, and in 1912 bought the eighty acres of land involved in this controversy. At that time. this land was in wood's. It is situated about two and one-half miles from the corporate limits of Mount Olive. Since the purchase of this land, the appellee has cleared and put in cultivation about twenty acres. He has built a small two-room negro cabin on it, which was once occupied by negroes. Since appellee ceased to work for the .railroad company, he has devoted his entire time to farming this tract of land. He usually goes out to it in the morning from his residence in Mount Olive and returns to his residence at night. A few days before this land was sold under execution, the appellee made a homestead selection in accordance with section 2148, Code of 1906, section 1823, Hemingway’s Code. In this selection he claimed as his homestead both this residence in Mount Olive and the eighty acres of land. The combined value of the two properties does not exceed the exemption homestead value. -The testimony shows that the appellee and his wife have resided in the house in Mount .Olive since its purchase in 1910; that appellee has never lived or resided on the eighty-acre tract of land, but has merely fenced it, built a negro house on it, and cultivated a part of it; that the distance between the residence and the little farm is about two and o,ne-half miles.

Under section 2146, Code of 1906, section 1821, Hemingway’s Code, relating to homestead exemptions in the country, the exemptionist is entitled to hold “the land and buildings owned and occupied as a residence by him or her.” The amount of land is here limited to one hundred and sixty acres, and the value is limi_ ted to three thousand dollars. Under section 2147, relating to exemptions in cities, towns, and villages, the same language appears as in the previous section, namely, “the land and buildings owned and occupied as' a residence.” This court has repeatedly'held that these sections are to be liberally construed in favor of the exemptionist. In order, however, for the land to be exempt under the. plain language of these sections, it must be owned and occupied as a residence. What is meant by this térm was very aptly expressed by tbe court in tbe opinion in tbe case of Campbell v. Adair, 45 Miss. 170, as follows:

“One of tbe leading objects of these statutes is to create, preserve, and protect a borne for tbe family, for tbe wife, mother, and children, as well as for the husband and father. A characteristic feature of home is a place of residence, of which occupancy is an essential element. As a general rule, to constitute a homestead there must be actual occupation, and use of the premises as a home for the family. The premises must be appropriated, dedicated, or used for the purpose designated by the law, to wit, as a home, a place to abide and reside on, A home for the family.’ ”

This language in the Adair Case was quoted with approval by SteveNS, J., in the opinion in the case of Mounger v. Gandy, 110 Miss. 133, 69 So. 817, and again by Potter, J., in the opinion in the case of Tanner v. Tanner, 111 Miss. 460, 71 So. 749. 'The opinion in the Tanner Case further says:

“The law does not exempt to every head of a household who lives in the country one hundred and sixty acres of land worth not more than three thousand dollars, but the statute exempts to the head of the household a homestead consisting of one hundred! and sixty acres of land worth not exceeding in value three thousand dollars. ’ ’

The homestead of the appellee in this case is his residence in Mount Olive. No exemptionist is entitled to' two homesteads. The eighty acres of land is in no sense a part or parcel of the town property. There is no connection whatever between the residence in Mount Olive and the eighty acres of land; they are absolutely separate and distinct. To hold that this land was a part of the homestead would be in effect to allow an exemptionist to claim as exempt as many seperate and distinct- parcels of land as he might own separated by any distance the one from the other, with the only limitation that the value of the holding be not more than three thousand dollars. All that can be said in favor of the appelleé’s claim is that he merely occupied or used this eighty acres of land for farming purposes.' This court, however, in the case of Roberts. v. Thomas, 94 Miss. 219, 48 So. 408, 136 Am. St. Rep. 573, said:

“Mere occupancy certainly is not sufficient; but, when that occupancy is coupled with residence, citizenship, and the status of being the head of the family, the right is perfect.”

In his selection of the homestead appellee was correct in selecting his residence in Mount Olive, as that really is his homestead. He had no right, however, to select two homesteads, and the erroneous 'declaration of the eighty-acre tract of land as a part of the homestead does not make it in fact such. It follows that the chancellor erred in holding that this eighty acres was a part of .the homestead.

The decree of the lower court is reversed, and the cause remanded.

Reversed and remanded.