Chapman v. White Sewing Machine Co.

Whitfield, C. J., delivered the opinion of the court. ' The court correctly declined to allow the cross bill to be filed. It came far too late and if it had been filed the matters it presented were already adjudged in this case, to wit, that the deed, to Mrs. Chapman was an absolute deed and not a mortgage. The cross bill in effect asks the chancellor to find on the very same proof on which this court declared the instrument a deed, that such instrument was a mortgage. This could not be permitted. As to the homestead allotment, the decree is correct. The chancellor’s decree, as first entered, was by our last judgment affirmed. Under that first decree of the chancellor Chapman had selected and located his homestead under the provision of the new law, § 1973 of the code of 1892, which provides that such selection shall bind the exemptionist, his wife and his creditors. This is a contest between the creditor and his debtor. If the debtor has, for reasons satisfactory to himself, chosen to locate his homestead on the 160 acres whereon are the residence and out-buildings, in which he and his wife [441] are tenants in common, that is good, under § 1973, against his creditors. As to their respective interests as husband and wife that is a matter for them with which the creditor has no concern, as has been expressly decided in Lewis v. White, 69 Miss., 352, and McGrath v. Sinclair, 55 Miss., 89. The debtor cannot claim a floating exemption. In this case he did not claim a floating exemption. He located it on the said 160 acres in accordance with § 1973 and is bound by it. As we said in our last opinion, there might be many reasons why the debtor would prefer to locate his homestead exemption on land in which he had only an undivided half interest. Two of those reasons very naturally exist here; first, because the 160 acres selected contained the dwelling house and all the buildings of the home. Second, because the value of the whole fee simple in the whole" 160 acres is less than $2,000, not to say $8,000, to which he was entitled under § 1973. All the authorities cited for appellant are inapplicable. Krippendorf v. Wolf, 70 Miss., 81, was decided under the law prior to 1892, and holds merely that where the judgment debtor owns jointly with his wife, he is entitled to a homestead exemption therein, which must be taken wholly out of his one-half interest. In that case the value of the homestead was shown to be $5,500 and it appeared that it could not be divided, and the decree was, properly, that unless the husband paid the $750 by a day named, his one-half interest should be sold, and the $750 excess over $2,000 paid to the creditor. Partee’s case, in 50 Miss., decides merely that a married woman owning separate estate and having her residence thereon, is a householder and can claim the exemption as such. Krippendorf’s case is a direct authority for the appellee’s contention. The husband was allowed to claim his exemption in property in which he owned one undivided interest and his wife the other. It directly supports the decree. The creditor there was allowed to sell the husband’s half [442] interest, unless he paid the $750, in excess of the $2,000 of course. But that feature is aside from the question whether, when the husband and wife own each an undivided interest in the home, the husband may locate his homestead on that land. That he can do so is expressly settled by McGrath v. Sinclair, 55 Miss., 89; Lewis v. White, 69 Miss, 352, and given as settled law in most jurisdictions in 15 Am. & Eng. Enc. L., 2d ed., 566 (4), with authorities. See to same effect authorities in note to Arendt v. Ware, 9 Am. St. Rept., 209. So here, if the one-half interest of the husband exceeds $3,000 in value, the creditor might get the excess. But the evidence shows and the counsel concedes that the whole fee simple interest is worth less than $2,000. Of what possible concern then can it be to the creditor that the husband has located the homestead exemption on a tract in which he had only an undivided half interest? He doubtless had good reasons for such selection, and is bound by it, as § 1973 expressly shows. The Kentucky and Missouri cases cited are under wholly different statutes, and the Missouri case was one where one parcel of land was a homestead, the husband and wife having each an undivided interest therein, but the interest of each one exceeding in value the homestead exemption, the husband being the debtor. And the question was, from whose interest should the homestead be taken. It was properly held that the homestead interest should be allowed him out of his interest, and that, of course, it was not proper to cut down his exemption because his wife had an interest in the same property, a case exactly like the case in 70 Miss. The decree is correct in all respects and is Affirmed.