Trotter v. Dobbs , 38 Miss. 198 ( 1859 )

Handy, J.,

delivered the opinion of the court.

This was an action of ejectment for a tract of land in the possession of the defendants, to which they pleaded, 1st, the general issue; and, 2d, that they are householders and heads of a family,- and occupy the land as such; and that the plaintiff claims title by purchase at a sheriff’s sale, under execution against the defendant Dohbs, who, at the time of the sale, was a free white citizen of this State, and a householder, and had a family, and occupied the land as a residence, and that the land was, therefore, exempt from sale under execution. Upon this second plea the plaintiff took issue; and the defendants had judgment.

It appears by the bill of exceptions, that the plaintiff purchased the land on the 6th December, 1858, at a sale made on that day, under two executions issued on judgments, rendered 25th and 26th August, 1858, against the defendant Dobbs, and duly enrolled; that Dobbs had occupied the land for about twelve months before the sale, and was not married until the day of the sheriff’s sale, but was married on that day, and before the sale took place, and continued in the occupation of the land; and that he had hired negroes, and kept house, and had .boarders, and that there were not more than one hundred and sixty acres in the tract.

The first question raised on the part of the plaintiff in error, is that there was no evidence to show that Dobbs was “ a free white citizen of this State.” This is not proved by evidence adduced directly to the point, and for the purpose of establishing it. But it is,shown that he had been residing on the land and keeping house for twelve months before the sale; and that entitled him to the rights of a citizen of the State, and in the absence of evidence showing that he was a sojourner or transient person, having a merely temporary occupancy of the land, he must be taken to have been a citizen of this State. He must also be taken to have been a “free white” person; for every one who is sued in our courts, and is permitted to keep a house, hire slaves, and take boarders, must be presumed to be a free white person. Moreover, it appears that he was married, which prima facie imports a legal marriage; and that cannot take place except with a “ free white” person. There is, therefore, no force in this objection.

But the principal question is, whether the marriage of the defendant after the rendition of the judgment, but on the day of the sheriff’s sale, and before the sale, he not having a family before the day of sale, was sufficient to exempt the land, for his benefit, from sale under execution ?

The policy of the statute plainly is, to give to the defendant the use of the property exempted from execution, for the benefit of himself, and as a means of support of his family. The provision is, that the property shall be “ exempt from seizure or sale under any execution,” &c. No time is limited for the operation of the act, nor restriction put .upon the enjoyment of the privilege contemplated by it; but it is extended to “ every free white citizen of this State,” “ being a householder and having a family.” It appears, therefore, that whenever a party fills this description of character, he is entitled to the benefit of the privilege conferred, provided he occupies the position before the land has been sold under execution. For it is as necessary that he should hold the property for the support of himself and his family, where he becomes a householder and head of a family after judgment rendered against him, as when he occupied that relation before the judgment; and the reason of the exemption applies as well in the one case as in the other. No legal right of the plaintiff, in the judgment rendered before the marriage, is impaired; because by the statute, his judgment, though generally a lien on all the property of the defendant, was subject to the restriction, that if he did not sell certain property of the defendant before he became a householder and had a family, it should be exempt from execution upon his afterwards assuming that relation. This was the effect of the statute exempting property from execution; it was a part of the policy of our laws, and the judgment was of course rendered subject to the rule established by the statute.

If this he correct, it is immaterial at what time before the sale under execution, the defendant occupies the position of householder and head of a family. He becomes entitled to the benefit, by occupying the position at any time before his interest in the property is divested by sale; for until then, the land, to all .intents and purposes, is his property.

The judgment is in accordance with this view, and it is affirmed.