Biglane v. Rawles

McGehee, C. J. On November 26, 1917, Mr. W. A. Rawls, of Covington County, obtained a warranty deed from J. A. (Babe) Knight and wife for 140 acres of land including the Sy2 of SE% of NE14 and the NE % of SE 1/4 in Section 26, Township 8, Range 15 West in said County. Thereupon the said W. A. Rawls and wife, Mrs. Trannie Rawls, moved into the Babe Knight house located on the NE14 of SE% of said section, township and range. During the year 1925 the said W. A. Rawls and wife moved from the Babe Knight place onto adjacent land of his father, W. F. Rawls. That is to say, across the road from the Babe Knight house and into W. F. Rawls’ larger and better house on the adjacent land to the west, where the said W. A. Rawls and his wife Mrs. Trannie M. Rawls resided until the year 1943, when W. A. Rawls died, and where the said Mrs. Trannie Rawls and her children continued to reside until March 1962, — a total of approximately thirty years — before this suit was filed by her, her children, and one of her grandchildren against the appellant Lester Biglane, who on December 9, 1932, purchased from W. A. Rawls one-half of the mineral interest in the minerals under the NE% of SE14 and the Sy2 of the SE% of NE 1/4 of said Section 26, Township 8, Range 15 West, without Mrs. Rawls joining in the execution of the two separate deeds. This fact is conceded. The two mineral deeds from W. A. Rawls to his nephew, Lester Biglane, were executed as aforesaid on December 9, 1932, and were placed of record as to the — 231 — 40 acres about 1:00 P. M. on that same day and tbe other deed for one-half of the minerals under the other 20 acres was filed for record about 5:00 P. M. of the same day, December 9, 1932, although the complainants did not actually know of either deed until the latter part of 1959. The mineral deed for one-half of the minerals under said NE% of SE% contained the'following words which were written in the handwriting of the grantor W. A. Rawls, and read as follows: “This is no part of my homestead. ’ ’ And in the deed to one-half of the minerals in the S% of SE% of NE% of said section, township and range, there was a similar notation in the handwriting of the grantor W. A. Rawls, reading as follows: “This not being any part of homestead.” The defendant in this suit, Lester Biglane, set up as his first defense the bar of the ten year statute of limitation under Sections 709 and 710, Code of 1942 Rec., and as a second defense he pled laches on the part of the complainants, since they had not challenged the validity of the mineral deeds from W. A. Rawls to the defendant Lester Biglane at any time from December 9, 1932, to March 1962, a period of thirty years. However, this Court held in the case of Sample v. Romine, 193 Miss. 706, 8 So. 2d 257, that the question of laches is largely addressed to the sound discretion of the chancellor, and his decision will not be disturbed on appeal unless it is clearly wrong and amounts to an abuse of discretion. This disposes of the case as to the second defense pleaded. As to the bar of the statutes of limitation under Sections 709 and 710, Code of 1942, the complainants set up as a defense thereto that neither the defendant Biglane, nor anyone claiming under him, had ever invaded the rights of the complainants by an adverse entry, and that the complainants had themselves been in the continued open, notorious, and uninterrupted pos — 232 — session of the land since the execution of the mineral deeds on December 9, 1932. Beginning with the case of Dingey v. Paxton, 60 Miss. 1038, the rule has now become well settled that one, who is already in the possession and enjoyment of all that he claims, cannot be required to commence a suit until there has been an adverse entry upon the land involved in a controversy. Until complainants’ possession of the land here in question is invaded, they are not required by any statute of limitation to bring a suit to recover the real estate of which they are already in full enjoyment. The present suit was filed by Mrs. Trannie Rawls, her children and one of her grandchildren in March 1962, and the chancery court was asked to appoint commissioners to designate and select the homestead of the grantor as of December 9, 1932. The complainants, who are the appellees here, selected one commissioner, the appellant, Lester Biglane, selected one commissioner, and the chancellor appointed the third commissioner, who was approved by the attorneys for both the complainants and defendant. Those commissioners found that as of December 9, 1932, the said W. A. Rawls, grantor in the two mineral deeds, then owned a total of 211.5 acres of land, including the 60 acres under which he had sold one-half of the minerals to the said Lester Biglane. These 60 acres of land were selected by the commissioners, with one of them not consenting thereto, as a part of the homestead of W. A. Rawls as of December 9, 1932. Section 322, Code of 1942, is the statute which provides for the appointment of commissions to designate and select the homestead of the exemptionist, where he has not done so in the manner provided by law in his lifetime. And the chancellor found that W. A. Rawls had not designated and selected his homestead in his lifetime in the manner provided by law, and the proof disclosed that they designated and selected less than — 233 — 160 acres out of a total of 211.5 acres, but which selection included the 60 acres described in the two mineral deeds in question, together with the W. F. Rawls old home place, owned by W. A. Rawls on December 9, 1932, and on which the dwelling house was located, all of a total area of not exceeding 160 acres and value of not 'more than $3,000, which consisted' of contiguous parcels in the form of a square or parallelogram as nearly as practicable as provided by Section 319 to 323, inclusive, Code of 1942. The appellant also set up as a third defense to the proceedings last above mentioned that the said W. A. Rawls had in his lifetime made .the said designation and selection of his homestead, as being lands other than the 60 acres, on which he had conveyed one-half of the minerals to the appellant, by his notation in each of these mineral deeds in his own handwriting that the land therein described was no part of his homestead. In other words, that he by the above mentioned notations designated and elected that his homestead would be on lands other than the 60 acr.es therein described, and in support of this contention appellant cites the cases of Rutherford v. Jamieson, 65 Miss. 219, 3 So. 412, and the prior case of Majors v. Majors, 58 Miss. 809. But this action on the part of the grantor was a designation and selection of the homestead by the head of the household and substantially as required by Section 322, Code 1942. Moreover, Mr. and Mrs. W. A. Rawls had during the year 1931 executed a deed of trust in favor of the Commercial Ban!?; & Trust Company at Laurel, Mississippi, on 73 acres of other contiguous land, and stated in the deed of trust that said land constituted a part of their homestead. In the case of Rutherford v. Jamieson, supra, the Court stated: “Mr. Rutherford sustained such relation to several parcels of land as to be entitled, at the time of this transaction, to select which was his homestead; — 234 — and in executing the deed of trust conveying some of these parcels he must be held to have made Ms selection of other land than that conveyed, for his homestead, and will not be permitted now to say that his homestead consisted of the land conveyed. Homestead rights are to be protected according to law, but are not to be perverted into instruments of fraud.” (Itallics ours). Butherford himself brought that suit, but was not permitted to change his position to the detriment of the appellee Jamieson. There are several established principles which are pertinent to the facts of this case. First, the husband, as head of the family, has the right to select the homestead, and the wife is bound by his selection, if it is made in good faith and not for the purpose of defeating her rights. Tanner v. Tanner, 111 Miss. 460, 71 So. 749; Ritter v. Whitesides, 179 Miss. 706, 176 So. 728; Cliett v. First National Bank, 182 Miss. 560, 181 So. 713; Livelar v. Kepner, (Miss.) 146 So. 2d 346; 40 C. J. S., Homesteads, Sec. 47; see Miss. Code 1942, Bee., Secs. 319-323. Second, a conveyance, even though it is invalid as to the homestead, may be sufficient to convey that portion of the property covered by the conveyance which is in excess of the statutory exemption. This rule is summarized in 40 C. J. S., Homesteads, Sec. 146, as follows: “While there is authority to the contrary, the general rule is that a deed or mortgage covering the homestead and other lands, or covering a single tract whose value exceeds the statutory exemption, although it is invalid as to the homestead, may yet be sufficient to convey or encumber that portion of the property which is in excess of the statutory exemption. The same rule applies to contracts to convey as well as to conveyances and mortgages, and also to leases.” . To the same effect is 26 Am. Jur., Homestead, Sec. 135: “If property in excess of the statutory amount — 235 — is described in the instrument of conveyance, the grant, although not concurred or joined in by both spouses, is operative as to the part which is not subject to the homestead right. Where a husband alone executes a conveyance of a tract of land, and the tract includes both the homestead exemption and land.in excess of the exemption, it is generally held that although the conveyance is invalid as to the homestead premises, it is a valid conveyance in so far as it alienates any excess, either in quantity or value, over the legal exemption, and that appropriate proceedings may be had to admeasure the homestead and subject the excess to the conveyance.” In Anno., 45 A. L. R. 395, 413-414, there are cited many cases applying this apparently universal rule, with no dissent. That rule is summarized therein as follows: “Where a husband -alone executes a conveyance of a tract of land, and the tract includes both the homestead exemption and land in excess of the exemption, it is generally held that, although the conveyance is invalid as to the homestead premises, it is a valid conveyance in so far as it alienates any excess, either in quantity or value, over the legal exemption, and that appropriate proceedings may be had to admeasure the homestead and subject the excess to the conveyance.” The foregoing principle hereinabove discussed has long been established in Mississippi. The most recent application of it was Lee v. Duncan, 220 Miss. 234, 243, 70 So. 2d 615. Other Mississippi cases cited therein applying this rule are: North American Trust Co. v. Lanier, 78 Miss. 418, 28 So. 804; Robert G. Bruce Co. v. Spears, 181 Miss. 786, 181 So. 333; Hughes v. Hahn, 209 Miss. 293, 46 So. 2d 587; Thompson v. Dyess, 218 Miss. 770, 67 So. 2d 721; see 1 American Law of Property (1952), pp. 826, 857, 869-871. The next proposition is stated in 40 C. J. S., Homesteads, Sec. 43, as follows: ‘ ‘ * * * where the owner — 236 — of a tract sells a part and retains the balance which is sufficient in value and extent to constitute a homestead, the owner thereby elects to treat the part retained as a homestead.” Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742; Hall v. Gottsche, 114 Iowa 147, 86 N. W. 257. 40 C. J. S., Homesteads, Sec. 146, states this principle in this way: “Where a homestead exceeds in value or area the statutory exemption, a sale of the excess operates as a selection of the remainder as the homestead to the exclusion of the alienated tract, and hence a sale of such excess is not rendered invalid because it fails to comply with the statutory requirements for the conveyance of homesteads.” Alabama Power Co. v. Cornelius, 211 Ala. 245, 100 So. 207. In Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742, the Alabama statute allowed a homestead claim of a value up to $2,000. Williams and his wife lived on an 80 acre tract of land, as their homestead. In that case there was involved a one-acre tract as a part of the homestead. The total value was $2,500, and the 1-acre tract was worth $25-$30. Kilpatrick, the complainant, made an oral contract to sell Williams, the defendant, a mare, in return for which the defendant would convey to Kilpatrick the 1-acre tract. The transaction was completed, except the defendant had not executed a deed. Complainant went into possession of the land, and transferred the mare to the defendant. Defendant, claiming the mare was physically defective, declined to convey, and Kilpatrick brought suit for specific performance of the contract to convey. The court said: “When the owner of a homestead which is greater in value than $2,000, or in area than 160 acres, sells a portion thereof, leaving, including the dwelling and contiguous thereto, the maximum value or area allowed by law for the homestead, this amounts to the selection of a homestead to the exclusion of the alienated tract, and the provisions of the code (section 4146) with respect to the alienation — 237 — of homesteads have no application. This proposition does not seem to have been heretofore considered by this or any other court, but its propriety cannot be doubted, and it is in harmony with our statutes and decisions.” Hence the verbal sale of the 1-acre tract was sufficient to give complainant an equitable title, subject to the wife’s dower right, and the court said complainant was entitled to specific performance. However, the chancery court denied it, and the complainant did not appeal, being satisfied with the judgment for $35 and a lien on the property, the 1-acre tract. The defendant’s appeal was affirmed. Complainant was entitled to specific performance, and at the' least was entitled to the alternative relief granted by the chancery court. In Alabama Power Co. v. Cornelius, 211 Ala. 245, 100 So. 207, Cornelius and wife sued the power company in trespass for constructing an electric line across their land. Defendant offered in evidence a deed from Mr. Cornelius, without his wife’s signature, to Jefferson County for a right-of-way for a road over the land. The power line was placed on the road right-of-way. Plaintiffs owned the land jointly. The court said: “The result is each of these plaintiffs would be entitled to an exemption not in excess of $1,000 in value each, and not to the extent of $2,000 each. The homestead being greater in value than $2,000, the sale or dedication of the excess by the owner operates.as a selection of the remainder as the homestead to the exclusion of the alienated tract. Williams v. Kilpatrick, 195 Ala. 563, 70 South. 742.” Hence it was held that Mrs. Cornelius did not convey her interest, and had a right of action as to her one-half interest, but not the husband. In Irvin v. Irvin, (Ala.) 93 So. 517, the alienation and selection rule, stated in the Williams and Cornelius cases, was held not to be applicable where the land involved was part of the homestead, and worth less than $2,000. — 238 — Metropolitan Life Ins. Co. v. Estes, (Ala.), 155 So. 79, in a dictum, endorsed the rule of Williams v. Kilpatrick, but held it was not applicable to the facts in that case. Thorp v. Thorp, 70 Vt. 46, 39 A. 245, cited in Hall v. Gottsche, supra, authorized foreclosure of a mortgage executed by the husband on a store near the home and premises, where the entire property exceeded in value the homestead exemption. The court said: “All the ends and purposes of the exemption are met if he does convey some part of his estate which might have, but has not, been used as a part of his homestead, so long as he leaves the dwelling house, outbuildings, and land used in connection therewith of sufficient value to give his widow a full homestead. So far as use or keeping is determinative of the location of the land used in connection therewith, the husband’s acts and intention, by the terms of the statute, control. The master has found that Homer Thompson’s intention and use of the land connected with the Wheeler house, when he gave the mortgage sought to be foreclosed, fixed the homestead in land owned by him other than that covered by the mortgage. This enabled him to convey the store and lot by his sole deed. The orator has the right to foreclose the mortgage against the estate of Lovisa A. Thompson. ’ ’ Miss. Code 1942, Rec., Sec. 323, expressly recognizes the excess rule. It provides that, if a proper selection of homestead has not been made, an officer holding an execution against the person shall levy execution on the whole land, the officer shall select three householders to set off to such person a portion of the land embracing the dwelling house and outhouses, and “the levy of the execution shall be dismissed as to the part so allotted; and the officer may advertise and sell the remainder of the land.” — 239 — A Mississippi case directly on this issue is Rutherford v. Jamieson, 65 Miss. 219, 3 So. 412 (1887). In December, 1879 Rutherford moved his family from his farm to Blue Mountain, for the purpose of educating his daughters, and purchased a house in that town, where his wife and daughters moved. He owned two adjoining-tracts of farm land, each containing 160 acres. He and his boys remained on the farm, living in a house located on the tract in section 14, cultivating some of it, but mostly farming on the adjoining tract in section 13. In January, 1880 Rutherford borrowed from the Board of Supervisors’ school fund some money, and executed a deed of trust on the section 13 land. His wife did not join. In the fall of 1880, he sold the tract in section 14, and he and his boys moved to the land in section 13. Later his wife and daughters returned and lived also on this tract. In 1886 there was a foreclosure of the deed of trust, at which C. L. Jamieson purchased, and later brought this action of ejectment. The jury’s verdict for plaintiff was affirmed. The Court rendered the opinion hereinbefore quoted. It will he noted that the court held that Rutherford was entitled to select his homestead, and execution of the deed of trust constituted such a selection. The instant case is even stronger than the Rutherford case. Here Rawls conveyed to Biglane by mineral deeds which expressly stated that the land was not part of his homestead. If the selection in the Rutherford case was evidenced merely by a conveyance, on an even stronger basis the selection here was made, both by the conveyance and by express recitals in the two deeds declaring the land was not his homestead. Moreover, 30 years elapsed before anyone attacked these instruments. The Rutherford case has not been overruled, and would appear to apply to the instant case. Other related Mississippi decisions do not modify or weaken the Ruth — 240 — erford ruling, but are distinguishable on other grounds. Moreover, we think it is sound and equitable. Breland v. Parker, 150 Miss. 476, 116 So. 879, does not specifically apply to the present situation. It was held that a recitation in a deed from the husband to his wife, conveying her 200 acres, which stated that the land constituted no part of grantor’s homestead, which was factually incorrect, was not binding on the grantee, the wife, or representatives of her deceased husband, when she subsequently conveyed 80 acres thereof. Mrs. Breland with her children was in the open possession and occupation of the land. Ritter v. Whitesides, 179 Miss. 706, 176 So. 728, is relevant here. The Ritters owned 63 acres of land and lived on it for a while. In 1926 Mr. Ritter purchased another 188 acres, on which there was a better residence, and they moved on the 188-acre tract. While living thereon, Mr. Ritter executed a deed of trust on the 63-acre tract, which recited, “I have 160 acres other than this. This is a first lien on the above described property.” Later the bank foreclosed its deed of trust, and brought this bill for cancellation of the claim of the Ritters and a subsequent mortgagee. Defendants contended the deed of trust was void because it was on their homestead, and the statement of Mr. Ritter in the deed of trust did not bind him or his wife. The court held they had moved to another tract of land not connected with the 63 acres, and the deed of trust was valid. The chancellor found that the 63-acre tract did not constitute a homestead, and this finding was affirmed. It was said that the husband had the right to select the homestead, and “the recital of J. W. Ritter in the deed of trust was sufficient evidence of his selection of a new homestead, when he and his wife were, in fact, occupying other land for living’ purposes.” In Kyle v. People’s Bank & Trs. Co., 186 Miss. 287, 187 So. 534, Kyle owned 110 acres on which he resided — 241 — with, his wife and children as a homestead. The 40 acres here involved was one-half mile south of the home place. He executed two deeds of trust to the hank, in 1927 and 1932, on the 40 acres, each of which recited that the 40 acres constituted no part of the homestead. Later the bank foreclosed, and brought suit to remove clouds. Kyle arg-ued the deed of trust was void, because it was part of his homestead, since he had only a total of 150 acres, including the 40 acres. The chancellor found against him on this issue, and was affirmed. The court said that the stipulations in the deeds of trust that the 40 acres “was no part of the homestead was not binding on him, nevertheless it was a declaration against interest, which the chancellor should have considered, and doubtless did consider, * * In Thompson v. Dyess, 218 Miss. 770, 67 So. 2d 721, complainant, a daughter of the grantor, filed suit to enjoin removal of timber and to recover damages. In 1946, Vaughn executed a timber deed to the entire 380 acres, part of which Vaughn and wife lived on, but had made no selection of homestead. He died in 1947, and the widow died in 1949. Complainant was their heir. Prior to the widow’s death, Dyess had cut timber with no objection from the parents or complainant. Later complainant objected to cutting timber on a certain 160 acres. Dyess paid $1,400 for the timber deed, and his widow and complainant used that money. So far as the deed affected the homestead, the Court held it was void. Complainant was not estopped from asserting its invalidity, but was in no position to claim damages for the timber previously cut. However, the chancellor had denied an injunction, and the case was reversed and remanded for commissioners to be appointed to determine what part of the tract was homestead, and to enjoin cutting timber from it. It should be noted the timber deed did not convey the timber in only a part of the entire tract, and contained no selection — 242 — of homestead by the husband, or any recitation as to part of the same not being his homestead. See Ann., 128 A. L. R. 414; Anno., Lien of Judgment on Surplus in Quantity or Value of Homestead, 32 A. L. R. 1333. After hearing evidence, the chancery court rendered a decree finding certain facts and conclusions, and appointing commissions to allocate the homestead. The court found that Rawls owned 211.5 acres of land, or an interest in that land, subject to homestead exemption; and that 160 acres should be allotted from this tract in order to determine whether or not the two mineral deeds of December 9, 1932 to Biglane constituted a part of Rawls’ homestead. The court found that on March 30, 1931, Rawls and wife executed a deed of trust to a bank to secure a debt, being the 73 acres west and north of the east one-half of the. southeast quarter of section 26, and that deed of trust recited: “We represent the above described land to be our homestead.” Hence it was said that “because of the said stipulation” in the deed of trust, that 73 acres “constituted a part of the homestead of said parties on December 9, 1932”, particularly in view of the fact that the home of Rawls was embraced in that description. The court accepted as a selection of homestead a stipulation in a deed of trust executed in 1931 by Rawls and his wife, stating a certain 73 acres was part of the homestead. Nevertheless, the chancery court declined to accept any such statement in the deed from Rawls to Biglane, excluding the lands in question covered by the mineral deeds. Since the decree therefore found that Rawls and wife had already designated 73 acres, by their deed of trust, there was left remaining 138.5 acres, out of which the three commissioners were directed to select (for the remainder of the homestead) 87 acres, which would come out of the remaining 138.5 acres, “as of December 9, 1932.” Their report selected the 60 acres covered by the one-half mineral deeds to Biglane, and the west — 243 — 27 acres of the SEy^ of the SE^, section 26. The final decree approved this report. The second mineral deed was filed for record at 5:00 P. M. the same day. It conveyed one-half mineral in an adjoining 20 acres, the Sy2 of SE^A of NE1/^, Section 26, and recited “this not being any part of homestead.” This suit attacking these mineral deeds was not brought by complainants until 30 years after they were executed and recorded. It was filed 19 years after the death of the grantor, W. A. Rawls, who died in 1943. Under all of these circumstances, the following rule is applicable: Where the owner of a tract of land sells a part and retains the balance, which is sufficient in value and extent to constitute a homestead, and represents that the part conveyed is not his homestead; and where the part conveyed is not that upon which the family is residing and is not essential to operation of the homestead premises, and the conveyance was made in good faith and did not substantially impair the balance, which is sufficient in value and extent to constitute a homestead; — then, under these circumstances, the owner, by the execution of such deed and a recital therein excluding it from the homestead, has thereby selected the remainder, up to the statutory amount, as homestead, and has elected to treat the amount retained as homestead, not that granted. 40 C. J. S., Homesteads, Sections 43, 146. The sale of the excess operates as a selection for homestead of land other than the alienated tract. Rutherford v. Jamieson, 65 Miss. 219, 3 So. 412. Applying the above rule to the facts of the instant case, our conclusions are as follows: On December 9, 1932 W. A. Rawls owned 211.5 acres of land, 51.5 acres in excess of the 160 acres exempted as homestead. The deed from Rawls to Biglane of that date, conveying one-half of the minerals in the NEy, of the SE]4, Sec. 26, T. 8N, Range 15W, Covington County, Mississippi, and reciting it was not part of his homestead, constituted — 244 — a selection of part of the remainder as homestead, to the exclusion of the described alienated tract. That deed was filed for record at 1:00 P. M. on December 9, 1932. It validly conveyed to the grantee the interest therein stated. Hence the chancery court erred in cancelling that deed, and its decree so adjudicating is reversed, and judgment is rendered here adjudicating this deed is valid and binding. The second deed from Bawls to Biglane is also dated December 9, 1932 but filed for record four hours later, at 5:00 P. M. The deed filed earlier presumptively was executed prior to the one filed later, and there is no evidence to the contrary. See Miss. Code 1942, Bee., Section 869. Accordingly, at the time of this conveyance of one-half minerals in 20 acres (SV2 of SE^ of NE%, Sec. 26, T. 8, B. 15 W., Covington County, Miss.), stating it was not any part of grantor’s homestead, the remaining acreage vested in Bawls was 171.5 acres, or 11.5 acres in excess of the legal exemption (160 acres). With reference to this deed, judgment is rendered here adjudicating as follows: that the said deed constituted a valid and binding conveyance of one-half minerals in 11.5 acres in the described tract, being the excess over the remaining gross homestead exemption; and that, in order equitably to carry out Bawls’ selection by deed, there is allotted to Bawls’ homestead, as of December 9, 1932, the west 8.5 acres of the S1/^ of SE14 of NE%, of Section 26. This is the land nearest his residence at that time. It is further adjudged that this deed validly conveyed to Biglane one-half 'of the minerals in the east 11.5 acres of the S% of SE% of NE14 of Section 26. Those cases holding that on reversal there should be a remand for appointment of commissioners to make a homestead allotment out of a larger tract are not applicable here. Cf. Thompson v. Dyess, 218 Miss. 770, 776, 67 So. 2d 721; Lee v. Duncan, 220 Miss. 234, 244, — 245 — 70 So. 2d 615. The reason is that, in the instant case, we hold that the grantor made his own selection of homestead in 1932, expressly excluding the alienated tracts to the extent of the excess over the exempted homestead area. Rutherford v. Jamieson, supra; see Miss. Code 1942, Rec., Section 322. Reversed and judgment rendered here for appellant. Arrington, Ethridge, Gillespie, McElroy, and Jones, JJ., concur.