Thoms v. Thoms

SlMBALL, J. : The record raises the question, mainly, whether the wife has such interest in the homestead (during the life-time of the husband), as that she can appeal to a court of equity for its protection. The bill describes a persistent course of — 273 — ill treatment and oppression by defendant, Henry A. Thoms toward the complainant, his wife; prompted by the wicked motive of compelling her to remove from the house and premises in which she dwelt, which had been exempted and left to her husband, as a homestead, by the bankrupt court. That her husband had confederated with his brother to deprive her of home and shelter, and had conveyed the property to him, in fraud of her rights. That her husband had ceased to cohabit with her, but absented himself from his home. She prayed that the conveyance made to his brother might be declared void and canceled, that she might be quieted in the possession and enjoyment of certain parts of the house, and provision made for her support. Other subjects are introduced into the bill, which will be hereafter noticed. Art. 281, Rev. Code, p. 529, exempts from seizure, or sale under any execution, judgment or decree, the lands and buildings, occupied and owned as a residence by the debtor, he or she “ being a householder and having a family.” The act of the legislature of 1865, enlarges the amount and value of the exempt property; the third sections directs that upon the death of the husband, this property shall descend to the widow as the head of the family, for the use and benefit of herself and children. In determining the character of title which the widow and children took under the amendment passed in 1860, it was held in Mason v. O’Brien, 42 Miss., that the title vested immediately in the widow and children, on the death of the husband, and that the appropiate suit would be brought by them for its recovery. In Wally v. Wally, 41 Miss. 659, it was said to descend to them like lands to the heir. See, also, Hardin v. Osborne, 43 Miss. 535. The exemption laws are founded in the beneficent policy of securing families against poverty and want, and protecting them against the misfortunes, the extravagances and follies of their heads. They are the recent introduction into the several states, are purely the creations of statute law, and the scope and extent of rights of parties claiming benefit — 274 — under them must be determined by reference to the statutes. Upon the many novel and embarrassing questions which have arisen, the courts have not always been harmonious. This, perhaps, is because each tribunal has been a pioneer, and had not the advantage of the discussions and judgments of the courts in other states, upon the same and kindred questions. The leading feature, in which the statutes of all the states that we have examined, concur, is, that the exempted property shall not be subject to seizure and sale, under judicial process, at the suit of a creditor. The protection is against creditors. But in several of the states the husband is deprived of the dominion over the title, unless with the concurrence of the wife. He cannot alien or convey unless she joins in the deed. The statutes of Massachusetts, California, Iowa, Texas, Wisconsin, and perhaps other states contain this restriction. In those states the courts hold that the conveyance of the husband, without the joinder' of the wife in the deed, is null and void, wholly inoperative to pass the title or create an incumbrance. Bruner v. Wall, 23 Texas, 585; Yost v. Devault, 9 Iowa, 60; Richards v. Chase, 2 Gray (Miss.) 383; Sargent v. Wilson, 5 Cal. 504; Williams v. Star, 5 Wis. 534. In the absence of such restriction, it would seem to follow that the title remains in the debtor, and his power of disposition is unembarrassed. There is no such restriction in our statutes. The prominent idea is to “exempt” the homestead from creditors; its use and administration for the benefit of the family, is intrusted to the head. Whether this case does or does not develope the necessity for further legislation, so as more effectually to carry out the benefit of the homestead exemption, for wife and children, is a subject deserving legislative consideration. In Smith et al. v. Allen et ux., 39 Miss. 473, the husband claiming to hold a slave as exempt from his debts, gave her by deed to his wife. It was declared that the debtor might dispose of exempt personal property, and that creditors could not pursue it in the hands of the alienee or — 275 — donee. It was urged for the creditors that the gift came within art. 23, Code, 336, making void a deed from the husband to the wife, as against his then existing creditors. But that argument was met by the statement that the property was “exempt” from debts, the creditors had no claim upon it, either as against the husband or his donee. The several statutes of this State, referred to, and the judicial interpretations of them, very clearly embrace the principle, that, upon the death of the husband, the exempt property descends to and vests in the widow and children, as land does to the heir. The personal effects do not come to them through the administrator by distribution. The recognition by the statute and the decisions is full and distinct, that so long as the husband lives he is the owner, and upon his decease, the title and interest which he had, passes at once to the widow and children. During his life-time neither the widow nor children have a vested interest in the property. In Green v. Marks, 25 Ill. 221, the question was carefully considered, whether a judgment creditor had a lien which could be enforced against the “ homestead ” after it ceased to be such by the act of the debtor. It was held that the debtor could neither sell or mortgage. It has been held, however, that under our statutes, if the debtor aliens the homestead, a judgment lien attaches. The amendment of the exemption laws, passed in 1867, allows the debtor to sell the homestead for purposes of re-investment, and exempts for a limited time the proceeds from levy and garnishment. The right of sale is recognized, twelve months are allowed for re-investment. During that time creditors cannot reach the money. The obvious intent of this statute was to throw around the proceeds of the sale, for a limited time, the same immunity which attached to the property itself; it also implies that there may be a change of the homestead. Upon the acquisition of a new homestead, the right to the former is abandoned, as if the debtor removes from one into another, and is owner of .both. The immunity applies to — 276 — the latter, and the former ceases to be exempt, and may be seized and sold by creditors. Horn v. Tafts, 39 N. H. 478; Horner v. Adams, 28 Vt. 544; Taylor v. Boulward, 17 Texas, 74. It is a principle of universal law, that the domicile of the husband is the domicile of the wife. Story’s Con. of Laws. Nor is the assent of the wife necessary to enable the husband to select and fix the homestead. He may change it at pleasure without her consent. Williams v. Sweatland, 10 Iowa, 51. But so long as the wife and family occupy the premises, although the husband may have left them, it is still the homestead, until the husband has actually acquired and established another. We are of opinion that on this branch of the case the complainant has shown no right to relief. She claims also for no account against her husband for money, which belonged to her before her marriage, and which was used by him in his mercantile business. It is stated in the bill, that, touching this money, the parties made a computation and settlement, the husband executing to the wife his promissory note for the amount due, that in the course of the proceedings instituted by the husband, to be discharged as a voluntary bankrupt, this debt was preferred and proved against him, and the complainant was paid her pro raía from the bankrupt’s estate. It is claimed, however, that she is not barred of its recovery, because it was a “trust” debt, within the meaning of the bankrupt law. Is that the character of this debt ? There may exist the relation of creditor and debtor between husband and wife, and the latter may, by bill in chancery, obtain a monied decree against her husband. Simmons v. Thomas, sheriff, 43 Miss. 39. When the husband uses the wife’s money with her consent, he thereby becomes her debtor. If he makes a written promise to pay, she has a remedy in the proper court on failure to comply. But in these sorts of dealings with each other, no extraordinary sanctity, or peculiar privilege characterizes the debt. — 277 — Gibson v. Foote, 40 Miss. 790. This transaction comea within the terms of the 26th article, Code 336. “ Any married woman may loan her money, and take securities therefor in her own name.” We think that the indebtedness to the complainant has been discharged by the decree of the bankrupt court. The bill is obnoxious to the charge of multifariousness. The several subjects introduced aré incongruous. There is no connection or dependency between the allegations and relief prayed for, in respect to the “homestead,” and the indebtedness of the wife, on account of her money, used with her consent by the husband. Nor have either of these any connection with the claim preferred for alimony and maintenance. We affirm the decree of the chancery court, sustaining the demurrer and dismissing the bill.