Bank of Cruger v. Hodge

Griffith, J., delivered the opinion of the court. Appellee is the owner of the land in question and she occupied it with her husband and two daughters as the family homestead during the years, 1931 "and 1932. During the latter year, however, owing to the financial depression then extremely prevalent throughout the country, 'and because they were unable to secure the advances necessary to make a crop, they were obliged to remove to a town in a neighboring county where the husband had obtained' employment. He continued in various employments in different towns until on or about June 1, 1939, at which time the family was residing at Greenwood and the husband was employed as collector by a furniture company there. On October 19, 1937 a judgment was rendered in favor of appellant and against appellee and her husband, which judgment was duly enrolled in the office of the circuit clerk of the county in which the land is situated, and an execution having been issued under the judgment, the land was advertised by the sheriff to be sold on the 1st day of June, 1939. A day or two before the day of sale, appellee moved some of the furniture from the residence in Greenwood to the house on the land in question, and thereafter appellee and one of her daughters, the other *361 daughter being then married, spent one or two nights during every week end on the land, but the week days were usually spent at the residence in Greenwood, where the daughter was in school and where the husband continued in his employment as aforesaid. The contention of appellee is that she had never abandoned her homestead, but that her removal in 1932 was temporary, by reason of the necessity aforesaid, and that throughout the intervening seven years next preceding the advertised date of sale under the execution, she and her husband had maintained the intention and purpose of reoceupying the homestead as soon as the cause of their absence could be removed. See Sec. 1776, Code of 1930. ' Their testimony is to the effect, however, that their intention to return was when they had been able to make enough money, in employment away from the homestead, to buy the necessary farming equipment and to maintain themselves on the farm homestead; that during the seven years absence they had not been able to do this, and throughout the testimony there is no indication when, or whether ever, they will be so able. The statute allows only a removal which may be justly adjudged as temporary and requires a speedy return as soon as the cause of the absence can be removed; but according to the testimony, the obstacle in the way of a speedy return may never be removed. The case is controlled, therefore, by the rule as reviewed in Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87, with the result that it must be held that there is an abandonment of the homestead. Appellee relies as her second contention on the long line of cases in this state beginning with Trotter v. Dobbs, 38 Miss. 198, to the effect that a judgment debtor may successfully interpose his claim of exemption as against the execution creditor at any time before sale under the execution if the debtor has actually gone into the occupancy or reoccupancy of the land as a homestead at the time of the sale. In order to avail of that *362 rule, the- premises being already habitable, the occupancy must be such as will stamp1 the place claimed as a homestead with the character then and there of an actual and permanent residence of the debtor and his family, and it is not sufficient that it has been made a mere part-time lodging place, while the real residence of the family remains elsewhere, as the testimony shows was the case here. ■ Reversed and remanded.