Jackson v. Coleman

Ethridge, J., delivered the opinion of the court. Lindsey Jackson, the appellant, a colored man living-in Bolivar county, Miss., acquired forty acres of land upon which he lived and which hh cultivated. He had a wife and three children. His wife died, and he married the second time; but the second venture in matrimony proved to be unfortunate and unsatisfactory to spouse No. 2, who sued for and obtained a divorce in the chancery court of that county, and as a part of the divorce proceeding was allowed alimony at the rate of five dollars per month and an attorney’s fee of seventy dollars. The decree and the pleadings in the divorce case did not refer to the land, nor was any lien enforced against the land bv virtue of the decree on its face; the decree being simply a straight judgment for such amounts, without describing any property or containing any provision that it should be a lien on the homestead of the appellant. This-divorce was obtained in the fall of 1908; the appellant having at that time three children by his first wife, one of whom subsequently married, but two of whom still lived with Lindsey Jackson and were dependent upon him for support. There seems to have been no effort to-collect the judgment, further than a small payment on it shortly after it was made until 1913. In the winter543 of 1908 and 1909 Lindsey Jackson "became afflicted to such an extent that he was unable to perform manual labor. The affliction seems to have been rheumatism, and its possible duration could not be told. In this condition Jackson sought to rent or lease a portion .of his place to certain of his neighbors for one or two years, but was unable to make a lease or to rent the land, or a part of it, for such length of time. One of the neighbors proposed to rent the place for a period of five years and pay one hundred and sixty dollars per annum therefor. The appellant, being unable to lease it and unable to work, made a lease for five years and moved on another place with some relatives,taking his children with him. This condition existed in 1913, when an execution was issued on the judgment for two hundred and twenty dollars and costs. The land was levied upon and sold without Jackson’s knowledge or consent, the sale being in June, 1913, and at the time of the sale the tenant of Jackson was then in possession occupying the land as such. About October following the execution sale the claimants of the execution sale went to the tenant of Jackson, informed him that the land had been sold, and demanded possession, offering to permit the tenant to gather his crops and use the outhouses and'barns, but demanding possession of the dwelling house. The tenant. gave possession of the dwelling house, and when Jackson learned of this fact be moved back in the house, after advising with an attorney. But the purchasers of the land went upon the premises, ordered him off, and removed his effects from the'house into the public road, whereupon Jackson filed suit to cancel the execution deed, claiming the place as his homestead. It appears that in the spring of 1909 Jackson got better and was able to do some work, and that he sought to rescind the lease, offering the lessee one hundred dollars as an inducement to surrender which the lessee refused to do. Subsequent' to this, and before the execution, other parties tried to lease the place for additional time, and some to [544] buy the property; bait Jackson refused to do either, saying at- the time that he intended to return as speedily as he could get possession of the property. The question arises: First, had Jackson abandoned his homestead? And, second, if not, was the land subject to execution because the judgment was for alimony? It is well settled in this state that the homestead laws are ■construed liberally, and favorably to the debtor. The intention of the exemption laws is to enable the debtor to earn a living and create the means with which to pay debts, and to prevent hardships and suffering of families growing out of the improvident contracts of the head of the family, incurring debts. Early in the history of this state the rule was laid down that the homestead laws would be construed liberally for the exemptionist, and that ■an abandonment would not exist unless it was clear from the proof that the exemptionist had moved from the homestead .with the intention of not returning. In this ■case the court said: “We are of the opinion that it would be a harsh rule to enforce qualifying words (of the statute) according to their literal import. There must be exceptional cases. . . . Temporary absence, while traveling or visiting would most certainly not be held a forfeiture of the benefits of the exemption. The case before us is little else. So temporary residence in town for church and shool purposes, leaving the homestead in charge of a tenant •or overseer, still retaining the home, with an intention of returning there, ought not to he held an abandonment of the homestead right. The courts of Illinois, whose ■statute of exemption is in precisely the language of our law of 1857, have held that the occupancy required by the statute may be by tenants. . . To require the actual, literal, continuous, physical occupation of the homestead by some one or more of the family would turn a humane and beneficent law into one of imprisonment and punishment. It would subject the homestead, provided by a' wise and liberal policy, to the casualties of life, [545] and the chances of unforeseen accidents; it would require of the family the precision of military regulations, and would demand that endless ‘watch and ward,’ which the law could neve'r have contemplated. . . . We are of the opinion that the waiver or forfeiture of the homestead right should he declared only upon clear and decisive proof of an intention totally to relinquish and abandon such right, accompanied by removal from the premises, and that it ought clearly, and beyond all reasonable ground of dispute, to appear, that the abandonment was with an intention not to return and claim the exemption. A doubtful and mixed ease, say the authorities, will not avail to cut off the right. . . . The homestead exemption is founded on a sound, public policy, combining in its support a variety of substantial reasons.” In the case of Gilmore v. Brown et al., 93 Miss. 63, 46 So. 840, the doctrine is laid down that homestead exemption laws are to be liberally construed in favor of exemptionists, and in this case it was held that the fact that the owner of a eountrv homestead voted and held office in a village to which his removal was claimed to have been temporary was not conclusive- evidence of the abandonment of the homestead. It was there held that the owner of a country homestead may purchase a dwelling house in a village and move his family thereto for the purpose of educating his children, and that his.qualifying as a municipal elector and holding a municipal office without forfeiting his rig’ht to claim his country home as exempt, if he keeps actual possession of it by any person or by some member of his family, cultivates it every year, and never ceases to claim it as his homestead, and always intends to return to it whenever the object for which he has removed to the village has been accomplished. In the case of Tiser v. McCain, 74 So. 660, it was held that a widow of a deceased exemptionist did not lose her right to the homestead exemption by a temporary removal to another county, where she lived temporarily with relatives, occasioned by the inconvenience of living upon the [546] homestead on account of having no one to stay with her on the premises, a tenant being in possession of the homestead. Section 2157. of .the Code of 1906 provides that, when the debtor shall cease to reside on the homestead, it shall be liable to his debts, unless his removal be temporary, by reason of some casualty or necessity, and with the purpose of speedily reoccupying it as soon as the cause of his absence can be removed. In the present case there was a necessity for Jackson to leave his homestead, under the conditions which surrounded him at that time. He had a family to support, and was unable at the time to perform physical labor, and it was necessary to use the place in some way to earn an income with which to support his family. The proof shows that he could only do this at that time by leasing his place out for the length of time that he did. He tried to secure more favorable conditions, and was unable to do so. The proof shows that he was anxious to return as soon as his physical condition permitted and that he did all in his power to protect and preserve .his homestead right, and it clearly appears that he never intended to abandon his homestead. We think, therefore, there was no abandonment of the homestead within the meaning of the statute. The next question is whether the homestead is subject to execution, being a debt or claim for alimony. Section 2156 of the Code provides that property shall not be exempt from execution in the following cases: “When the purchase money thereof forms, in whole or in part, the debt upon which the judgment is founded; but if the judgment be not in whole for money purchase, and the execution be levied on property exempt but for the provisions hereof, and the exemptionist pay or tender the amount of purchase money included in the judgment before sale, the property shall be released; nor shall any property be exempt from sale for non-payment of taxes or assessments, or for any labor done thereon, or mate [547] rials furnished therefor, or when the judgment is for labor performed or upon a forfeited recognizance or bail bond.” We think the statute having named the cases in which the property was not exempt that no further exceptions will be made by the court. It seems to be the general rule that a homestead is not subject to the demand for alimony unless there are no children. Biffle v. Pullan, 114 Mo. 50, 21 S. W. 450; Stanley v. Sullivan, 71 Wis. 585, 37 N. W. 801, 5 Am. St. Rep. 246; Ex parte Silvia, 123 Cal. 293, 55 Pac. 988, 69 Am. St. Rep. 58; Byers v. Byers, 21 Iowa, 268. Our own court, in the case of Moseley v. Larson, 86 Miss. 288, 38 So. 234, held that the decree might be made a lien upon the homestead, if ordered by the court in its judgment granting the alimony. We think that the pleadings must at least describe the homestead, and make proper allegations of facts showing the necessity for declaring a lien, so that the defendant may know at the time of the suit that his exempt property would be claimed to satisfy the debt, and to make proper showing as to why such lien should not be declared. In view of what we have said, the judgment must be reversed. Judgment is accordingly reversed, and the cause remanded, to be proceeded with in accordance with this opinion. Reversed and remanded.