Nixon v. Hewes

Cauhoon, J., delivered the opinion of the court. The owner of land, since act 1873, p. 78, and before code 1S92, §§ 1972, 1973, in reference to the selection and record-of homesteads, might determine his own homestead within the statutory value. He, being the owner, might, and still may, sell or incumber any part of the territory about the place of his home at his own will, and by his own act, if it do not trench on the statutory amount made sacred. To encroach on this, he must have the joinder of his wife. Bank v. Lyons, 52 Miss., 181, 183. The owner is in no worse nor better situation as to this because of making a record declaration under code 1892, §§ 1972, 1973. The logical conclusion of the contention of appellees is this: That the owner of premises about his house, [94] worth $50,000, could not convey or incumber a $1,000 strip of it without the joinder of his wife, who has no earthly right, title, or interest in any of it, homestead or not, but is simply invested by law with a veto on any touch of the statutory homestead. The legislature never meant, and has never said, such a thing. That body provided for a fair selection, based on a fair valuation, and for a procedure in cases of improper declaration (code, §§ 1975, 1976), and never contemplated preventing any person from doing as he pleased with his own, if he left a statutory homestead. The able opinion in Bank v. Lyons, supra, applies to the law now as it did to the law then, and wo approve its reasoning, its definition of homestead, and its conclusion. Reversed and remanded. Demurrer to bill to be overruled, with thirty days to appellees to answer after mandate filed in court below.