Zukoski v. McIntyre

Mayes, J., delivered the opinion of the court. Mrs. Johana Lou Watson is a married woman, with a husband and three children living. In 1904 she owned the land in -controversy, and resided on it with her husband and her children until some time in April. In April of 1904, Mrs. Watson went to reside with her husband on a place belonging to her husband’s father, and for a time left her own place. The husband -did not own any property at the time,.and does not now so far as This record shows. Mrs. Watson remained with her husband [810] about six weeks ou Ms father’s place -and Hen separated fporn him, finally going to Durant, about three miles from her former-home. She states, that with this exception, she has always resided on her own place and claimed it as her homestead. While in Durant, and until she sold the place to Mrs. McIntyre, appellee, she was back and forth on the place in the daytime, but-stayed with her aunt at night. Part of her place was rented to tenants during 1901; but a part of it she retained herself, and. had it planted in strawberries and an orchard. While in Durant she left-her furniture, wardrobe, and dining table in one of’ the rooms of the dwelling house-on the land in question, and kept a horse and buggy, some chickens, and a cow there. In September, 1901, and while the above narrated conditions-existed, she opened a millinery store in Durant, which continued, in existence for a few months only, when she failed in business. On November 11, 1901, she executed a deed to Mrs. McIntyre, appellee, to the property in question for the consideration of $615, which was not joined in by her husband. This deed was-not recorded by Mrs. McIntyre until the 21th of July 1905. In. this condition of affairs, and bn March 28, 1905, Lewis Zukoskirecovered a judgment against Mrs. Watson in the circuit court for the sum of $110.23. After the recovery of this judgment, and on the 25th day of May, 1905, an execution was levied on. the land in question, and the land was sold on July 3, 1905, at which sale Lewis Zukoski became the purchaser. After the sale-under execution the sheriff duly executed to the purchaser a. deed, which was filed for record oh the 11th day of July, 1905, just ten days prior to the time when Mrs. McIntyre filed her-deed for record under the attempted sale made to her by Mrs. Watson on the 11th day of November, 1901. In this condition; of affairs Mrs. McIntyre instituted a suit in the chancery court of Holmes county under Code 1906, § 550, (Code 1892, § 500), seeking to have the title of Zukoski cancelled as a cloud on her-title. The decree of the court declared the property to be the-property of Mrs. McIntyre, and ordered the sheriff’s deed to Zukoski to be cancelled. [811] The only question in this case is whether or not the land in-controversy can be considered a homestead. If the land in question constituted the homestead of Mrs. Watson at the time of her sale and deed to Mrs. McIntyre, it is now exempt from sale by the execution creditor, because her sale of the land, by express provision of the statute, would not make it liable. If this land is a homestead, the deed made by Mrs. Watson to Mrs. McIntyre-was a nullity, because not joined in by her husband. If the land was not a homestead, of course, it is liable to sale under the execution, since Mrs. McIntyre’s deed was not recorded until long after the judgment was recovered, and the land sold under this judgment, and the facts in the record doi not show that there was any such change of possession as would have put- any party-on constructive notice that the lands were not the lands of Mrs. Watson. The homestead right is a favored one in 'the law, and the courts will not be on the alert to defeat the assertion of those rights. Whenever there is serious doubt as to whether or not property is or is not a ho-rbestead, the doubt should be solved in favor of the exemptionist, sustaining, instead of defeating, the estate, which is created by a sound legal policy. Under the facts of this case, the husband having no property of his own, not having established a homestead elsewhere, it required no stretch of the imagination to suppose that it was the purpose of Mrs. Watson to hold onto this property of hers as á homestead up to the time she attempted to sell same to Mrs. McIntyre. When-she did make the deed to Mrs. McIntyre, the deed conveyed no title. This being the case, both by statute and under our decisions, it being required of complainant in a bill to remove clouds that he have a perfect legal or equitable title, and Mrs. McIntyre having neither, it was error in the court to sustain her bill and declare Mrs. McIntyre the Owner of the property, and order the deed to Zukoski to be cancelled as a cloud. Mrs. McIntyre had no title, either legal or equitable, and hence no standing in court. After the attempted sale to Mrs. McIntyre, on November 17 th, [812] it being made in good faitb and Mrs. Watson believing that sbe bad really conveyed tbe property to Mrs. McIntyre, tbe fact that sbe .then left tbe property, and did not go upon it any more, and did not assert any title to it, constituted no such abandonment as would make tbe property liable to execution. Code 1906, § 2158 (Code 1892, § 1982), provides that tbe exempt property, real or personal, disposed of by tbe owner, shall not by disposal become liable for the debts of the owner. If tbe actual disposition of the exempt property and a removal therefrom on account thereof will not render the property liable to the debts of the owner, by virtue of tbe statute, an attempt to convey same, made in good faitb, which fails because of an invalidity in the conveyance, though believed to be valid by the vendor and so acted on, will not make the property liable for debts. None of the litigating parties in this case has any title. The decree of the court is reversed, and bill dismissed.