Philan v. Turner , 195 Miss. 172 ( 1943 )

The controlling opinion in this case overrules Levis-Zukoski v. McIntyre, 93 Miss. 806, 47 So. 435, 436, although it does not expressly so state. The only difference in the material facts of the two cases is that in the present case the wife left the homestead, and the husband, in whom was the title, remained on it and conveyed it; while in the Zukoski case the husband left the homestead, and the wife, who had the title and remained on it, conveyed it. The evidence of the permanency of the separation was as strong in one case as in the other. The court held that the conveyance of the homestead by the wife, without the signature of the husband, was void.

In the Zukoski case the court used this language: "The homestead right is a favored one in the law, and the courts will not be on the alert to defeat the assertion of those rights. Whenever there is serious doubt as to whether or not property is or is not a homestead, the doubt should be solved in favor of the exemptionist, sustaining, instead of defeating, the estate, which is created by a sound legal policy."

The language in section 1778 of the Code of 1930, "married and living with his wife," and in section 1780, "if he be living with his wife," as construed by the Zukoski case, simply means as long as they are not divorced, and the owner continues to reside on the homestead; in other words, as long as they are man and wife, and the owner resides on the homestead. The same language was used in sections 2159 and 2161, Code of 1906, under which the Zukoski case was decided.

There is a conflict of authorities on this question; in 26 Am. Jur., p. 96, section 151, the authorities both ways are annotated. As shown by the annotations to Thompson and Randall v. Marlin, 116 Okla. 159, 243 P. 950, 45 A.L.R. 388 (the annotations in point appearing on page 431), the fact that the husband and wife are separated at the time the husband alone mortgages or alienates the homestead does not dispense with the necessity of the wife's consent to the incumbrance or alienation. Carey v. Hart, 208 Ala. 316, 94 So. 298; Mason v. Dierks Lbr. Coal Co.,94 Ark. 107, 125 S.W. 656, 26 L.R.A. (N.S.), 574; Chambers v. Cox, 23 Kan. 393; Ott v. Sprague, 27 Kan. 620; Sherrid v. Southwick, 43 Mich. 515, 5 N.W. 1027; Liebetreu v. Liebetreu,197 Mich. 668, 164 N.W. 430; France v. Bell, 52 Neb. 57, 71 N.W. 984. The fact that the wife has abandoned her husband, and is living in adultery, does not give him the power to encumber or alienate the homestead without her consent, as required by statute. Lies v. De Diablar, 12 Cal. 327, 328; Murphy v. Renner, 99 Minn, 348, 109 N.W. 593, 8 L.R.A. (N.S.), 565, 116 Am. St. Rep. 418.

The principle at the bottom of these cases is that the separation may be temporary; that the husband and wife may get back together again, as they sometimes do after radical differences and separation. That must have been the controlling thought in the Zukoski case. In other words, there is always hope that sooner or later the husband and wife will get back together again; and this hope continues until the divorce takes place; and during the separation, if the one who is the owner of the homestead continues to reside on it, it cannot be encumbered or alienated without the consent of the other.

Take for illustration the following: A farmer has a homestead — no other land. It is well stocked, and has all the other requisites of a good home. He has a wife, and, say, three little children. His wife becomes aggrieved at something which occurs between them. She leaves the home, stating that she never will return again, that the separation is final; and at the time she means what she says. At the end of a week she has changed her mind and comes back home. But in the meantime the husband, believing the separation is final, has sold and conveyed the homestead without the joinder of his wife. The result is, although he has some money, he does not know what to do with it. His life has been devoted to farming — he is trained in nothing else.

It may have been straining, to some extent, for the court to hold that the phrase, "living with his wife," meant as long as they were not divorced. Nevertheless, in my opinion, it was a wise straining, and ought to stand unmodified. Since the Zukoski case was decided several legislatures have convened and adjourned without making any change in these two statutes. That ought to mean something.