Morton v. McCanless

Campbell, C. J., delivered the opinion of the court. The only question in this case different from those decided in Morton et al. v. Carroll, ante 699, is as to the validity of an order of the probate court to sell what is alleged and proved to have been the exempt property of the father of the plaintiffs held under the act entitled, “ An aet to amend the exemption laws of this state,” approved, November 28, 1865. Acts, p. 137. The children and their mother were co-tenants of this land, the mother having an interest terminable by her marriage or death, and the children having the fee. Hardin v. Osborne, 43 Miss. 532. The interest of the children was subject to sale as any other land owned by them. McCaleb v. Burnett, 55 Miss. 83. Code 1857, art. 151, p. 463. The whole object of the exemption law of 1865 was to preserve the property from creditors, and not to affect the power of the [813] courts to deal with the property as that of the children and heirs of the exemptionist. In the probate court proceedings resulting in the sale of the lands sued for here there was no mention of the land being homestead or exempt property. The contrary is rather suggested by treating the land as subject to the widow’s dower, but the blundering ignorance on this subject did not affect the power of the court to deal with it, and fortunately the proceeding was so conducted as to result in a valid order of sale, whereby the wicked and shameful scheme, which the then guardian now swears she had in view, was effectually defeated. "We are constrained to believe that her memory is at fault, and that she does great injustice to honorable counsellors, when she states that this scheme was with the knowledge and advice of her lawyers. The result in this case was right. Affirmed.