Richie v. Duke

Campbell, C. J., delivered the opinion of the court. This court has felt bound to adhere to Trotter v. Dobbs, 38 Miss., 198, and so declared in Jones v. Hart, 62 Miss., 13; but, erroneous and mischievous as that decision was, it was never supposed to be capable of being misconstrued and perverted, as has been done in the case before us. It is true that in Trotter v. Dobbs the court, sticking in the bark, seized upon the language of the statute declaring that certain realty shall be exempt from “ seizure or sale ” as authorizing the holding that the execution debtor, resident on the land bound by the judgment against him, might marry on the day appointed for sale under the levy, which made the lien specific, and thereby unbind the land and defeat the lien, and render the sale nugatory; but, unsound as that is, it is inconceivable to us how that could be supposed to entitle one whose homestead was set off to him in pursuance of §§ 1251, 1252 of the code of 1880, afterwards to abandon it, move on another tract of land, sell that set off', and then successfully claim as his homestead the new selection. The claim of Mr. Duke is preposterous, and unallowable. When the sheriff levied the execution and proceeded in accordance with the statutes, and the commissioners set off certain land to Mr. Duke as his homestead, “the remainder of the land” levied on was subject to be sold. This is the express provision of the statute, [70] and no act of the defendant, in making another selection of land for his homestead, could defeat the sale. The learned judge below, with a correct view of the law, as shown by granting the first instruction for the plaintiff, refused to end the controversy by deciding for the plaintiff, as he should have done. Reversed, and remanded for further proceedings in the court below in accordance with this opinion.