Hinds v. Morgan

Woods, C. J., delivered the opinion of the court. The evolution of the law of homestead exemptions in this state presents a most striking and interesting study to the legal mind. By legislative enactment and judicial interpretation alike, the growth has been steady along lines most liberal in favor of those for whose protection and benefit homestead exemptions have been declared. It is, and from an early day in the history of our jurisprudence has been, the public policy of this state to preserve the homes of families, and, moreover, to insure to the heads of families, residing in their homes, the means of procuring a subsistence for the dependent members of the family. Our policy has been to prevent the making homeless and shelterless those whom the extravagance, misfortune, folly or misconduct of the head of the family has exposed to the righteous or rapacious demands of creditors, and, while so preventing, to secure, at the same time, the opportunity of acquiring a livelihood for the family. This public policy of ours is founded in the deepest political wisdom. It has for its immediate object the unassailable preservation of the home for the helpless family, with the present secured means of winning its daily bread; but the root of the matter strikes deeper, and underneath it lie considerations upon which the public safety may be fairly said to rest in large part. In republican govern [518] ments, the matter important in the highest degree is that of inspiring and keeping alive in vigorous fashion the sense of independence in the individual man. This sense of personal independence. is mightily fostered by a fixed legal assurance of a home, with some of its comforts and all its necessaries, despite the chances and changes of time, a home with the means of maintaining it and beyond the power of strangers to touch with despoiling hand, and impossible of destruction save by the voluntary and deliberate act of the representatives of those for whose protection and welfare it was created. We have said that the history of the evolution of our present exemption laws is characterized by ever increasing liberality. By the act of June 22, 1822, the farmer could hold as exempt the agricultural implements necessary for one male laborer, the wearing apparel of himself and his family, one bed and bedding, one plowhorse, and one cow and calf. By constantly widening views of public policy, we have come' now to allow to the exemptionist property far in excess of that owned by a majority of the citizens of the state — horses, colts, wagons, buggies, sewing machines, furniture not exceeding in value two hundred dollars, supplies of food, products for man and beast adequate to supply the wants of the ordinary family, and many, many, other articles for whose enumeration time fails us. The like progressive spirit in declaring exemptions in real estate is observable at a glance. Formerly, eighty acres was the quantity and fifteen hundred dollars the value; now, one hundred and sixty acres, with value not exceeding'three thousand dollars, if the exemptionist avails himself of his right to file his homestead declaration. When we turn to the judicial interpretation of the exemption statutes, we find the like increasing spirit of liberality in favor of the exemptionist. In Matthews v. Redwine, 3 Cushman, in construing the statute allowing to each head of a family one plowhorse, it was held that where it appeared that the debtor owned only one horse, and that the horse was adapted to the business of plow519 mg, the exemption existed, although there was no evidence to show that the animal was used as a plowhorse. In Trotter v. Dobbs, 38 Miss., 198, it was declared that, where the judgment debtor becomes a householder and head of a family, after the rendition of the judgment against him, but before sale under the judgment, he was entitled to hold as exempt the quarter section of land claimed by him as a homestead. In Mosely v. Anderson, 40 Miss., 49, it was said that our exemption laws were founded in public policy, without reference to the conduct or character of the person claiming the exemption, and without reference to his merit or demerit, and, in that case, the statute allowing the debtor one slave to be selected by him, he must be allowed the slave selected, notwithstanding the fact that he owned other slaves which he had placed beyond the reach of his creditors, or notwithstanding the fact that he may have disposed of them to defeat his creditors. In Patrick v. Rembert, 55 Miss., 87, it is said, consenting to a judgment does not waive homestead exemption and involve consent to sell anything and everything that the defendant has. In McGrath v. Sinclair, 55 Miss., 89, it was said that the right to the exemption was not dependent on the nature of the estate, but that any interest in or tenure of land will entitle the debtor to assert his claim to exemption in the land occupied as a residence, if the claimant be not a trespasser or wrongful intruder. To the same effect is King v. Sturges, 56 Miss., 606. In this latter case, King v. Sturges, it was held that the debtor, who owned 40 acres, on which he did not reside, but which adjoined another 40-acre tract which the debtor occupied as tenant at will of a railroad company, was entitled to assert his homestead exemption to the entire tract of 80 acres, though he did not actually reside upon the 40 acres owned by him in fee — the principle being that he might claim an exemption in either 40 acres, or both, if they did not exceed the statutory limit, and though held by different tenures. In Asker v. Trueland, 56 Miss., 30, and Parisot v. Tucker, [520] 65 Miss., 439, a claim to exemption was sustained, though one of the parcels of land in the one case was separated from the other grounds, on which the residence stood, by a street, and in the other, the lands claimed as exempt were separated from each other by the depot grounds and right of way of a railroad company. Many other adjudications might be cited, but the principles to be gathered from the above will render of easy solution the question involved in the case before us. As to the declarations alleged in the bill and shown in the depositions of Mr. Jayne and Mr. Watson to have been made by the appellant, to the effect that he had no homestead in his lands, it is to be said that Ms-rights are dependent not upon any mistaken, or even false, statement of his, made at the time of borrowing the money, but upon ‘‘ the facts of appellant being the head of a family and residing upon the premises as a home.” If the statements of the husband, of the character shown here, can defeat the homestead claim, then, in every case, what could not be done directly might be done by indirection, and the beneficent public policy of our law be utterly frustrated, and innocent families be turned out upon the world, homeless and paupers. There is no hint that the wife practiced any fraud, or attempted so to do. That the lands of appellant and his father constituted one plantation, under one fence, all controlled or cultivated by appellant as one place, and that appellant and his family resided on a 40-acre lot belonging to the father and adjoining 120 acres of appellant, is not denied. These facts entitled him, at the date of the making of the loan, and the date of the sale of the premises under the trust deed, to a homestead exemption in the 40-acre lot belonging to Thomas Hinds, and upon which appellant then resided with his family, and in the other lands either leased or owned by him, or in both. The trouble arises m making, at this late day, the proper selection, for a selection must now be made under the direction of the court below. The [521] homestead declaration filed by appellant cannot be maintained, because his rights are to be measured by the law in force when his contract for the loan was made; but, though mistaken as to the measure of his rights and the mode of their enforcement, he is not to be denied that which he was entitled to in 1891, when the loan ivas effected. If thought to be necessary, the pleadings should be so amended, after the case has been remanded, as to invoke the power of the court to have the homestead allotted by commissioners, under such directions as will subserve the policy of our laws in preserving a home to the exemptionist and his family, and in securing him the means of acquiring a livelihood out of the exempt lands. The rights of the appellees should not be arbitrarily disregarded in making the allotment, but, including the forty acres leased from his father, and on which he resided in 1891, or any part of this forty acres, less than the whole, containing the residence and outhouses, and contiguous to the lands owned by appellant, if such subdivision of the forty acres can be fairly and reasonably made, and without sacrificing the rights of ap-pellee, by making an allotment which would seriously impair the value of that portion of the forty acre tract not included in the allotment, there should, it appears to us, be set apart of the appellant’s own lands, adjoining the residence forty-acre tract of the father, enough to meet the requirements of our statute as it stood at that time. See Wiseman v. Parker, 73 Miss., 378, as to the general course to be observed in making the allotment. Of course, what is said in that opinion as to the proper construction of the provisions of code of 1892, which, for the first time, are found in our laws — as, for example, that only the dwelling house need necessarily be included in the allotment, and that the lands allotted need not necessarily be contiguous — are inapplicable in the present case. Under the law as it stood in 1891, the lands allotted must be contiguous, and the outhouses, as well as the dwelling house, must be on the lands allotted. To allot to him [522] all of his homestead exemption in the leased lands of his father would be, practically, to deny him and his family any of the benefits designed to be conferred by our exemption laws. Reversed cmd remanded, to be proceeded with in the court below in accordance with this opinion.