Jackson, Orr & Co. v. Shelton

Caldwell, J. G-. W. Shelton and his wife, Eoena Shelton, were joint owners as tenants by entireties of a residence in Camden. It was worth less than $1,000; and he owned no other real estate. In 1883 they conveyed it, hy deed of trust, to secure the payment of certain debts to one II. E. Stegall. In 1888, when but a small part of the secured indebtedness remained unpaid, other creditors of G. W. Shelton filed this hill to foreclose the deed of trust and reach the surplus proceeds of the trust property for their own debts. G. W. Shelton made no defense, hut his wife answered the bill, claiming homestead in the house and lot, subject to the deed of trust, the proper and binding execution of which she admitted. Before the filing of this hill, Mrs. Shelton — 84 — brought her suit, in the Circuit Court, against her husband for divorce; and an absolute divorce was granted to her, pending the present bill,, in the Chancery Court. The Circuit Court, in its judgment granting the dissolution of the bonds of matrimony, also adjudged that, as between her and him, she was entitled to homestead in said house and lot — such adjudication being subject to the single reservation that it should not operate to the prejudice of the rights of complainants in the present bill. Hearing the cause on pleadings and proof, the Chancellor adjudged that complainants were entitled to the relief sought in their bill, and that Mrs. Shelton had no right of homestead in the property involved. Prom that part of the decree refusing her claim to homestead .she has appealed to this Court. The conveyance of the residence by husband and wife, to secure payment of particular debts, is not a waiver of the right of homestead therein as against other debts. Hall v. Fulghum, 2 Pickle, 451. If the secured debts be not ‘paid, and the deed of trust or mortgage be foreclosed, the surplus proceeds of the property is subject to the homestead right, and will be held as an exempt fund, to the extent of $1,000, for re-investment in other real estate. White v. Fulghum, 3 Pickle, 281. So that, in the case before us, there is nothing to defeat the claim of Mrs. Shelton in the fact that she and her husband conveyed this property in trust to secure Stegall’s debts and that fore — 85 — closure has been decreed. As against complainants her right is the same as it would be without such conveyance and decree. If in that case she would be entitled- to homestead in the property, she is now entitled to the same right in such of its proceeds as may remain after payment of the secured indebtedness. The homestead is in the head of the family, and, in case of marriage, in the husband ’primarily; but when the wife obtains a divorce from her husband, on account of his fault or misconduct, “the title to the homestead shall be vested by decree of the Court granting the divorce, in the wife, and after her death it shall pass to the children.” Code (M. & V.), § 2946. This prqvision of the statute was met by the judgment of the Circuit Court when granting Mrs. Shelton a divorce, and the homestead was thereby effectually vested in her, if in law the property was subject to the right of homestead at all. The reservation in that judgment did not diminish her legal rights thereunder, for complainants in this cause had taken no steps, nor indeed could they have taken any, which could operate to the prejudice of any existing right of homestead. It follows, therefore, that Mrs. Shelton is now entitled to the .right of homestead in said house and lot, or its proceeds when sold, subject alone to the prior claim of Stegall, if said property was held by such a title as to be subject to the claim of homestead by G-. W. Shelton before the ex — 86 — ecution of the deed of trust. In short, the question is whether or not the right of homestead exists or inheres in real estate owned by husband and wife jointly as tenants by entireties. The learned Chancellor was of opinion that it did not, and so adjudged. By the statute, “A homestead, or real estate in the possession of or belonging to each head 'of a family, and the improvements, if any, thereon, to the value of, in all, one thousand dollars, shall be exempt from sale under legal process during the life of such head of a family — and which shall inure to the' benefit of his widow and children, and shall be exempt from sale in any way at the instance of any creditor or creditors.” Code (M. & Y.), § 2935. “Each head of a family owning real estate shall have the right to elect where the homestead or said exemption shall be set apart, whether living on the same or not.” Code, § 2936. These provisions “apply as well to equitable as legal estates,” and also “to leasehold property.” Code, §§2937-, 2938. And homestead exists in favor of one owning only a life estate in .the land. Arnold v. Jones, 9 Lea, 548. The homestead exemption is a favorite in this country, and laws concerning it are construed liberally in favor of the claimant. Thompson on H. & E., Secs. 4, 7, and 731; 9 Am. & Eng. Ency. of Law, 519; White v. Fulghum, 3 Pickle, 284; 11 Heis., 520; 9 Lea, 548; 11 Lea, 649. — 87 — The language of our statute is most comprehensive. In the description of the property in which the right exists, its terms are broad and unrestricted : “A homestead, or real estate in the possession of or belonging to each head of a family, * * * shall he exempt,” etc.; and “ each head of a family owning real estate shall have the right to elect,” etc. Interpreting these words according to their ordinary significance, as must he done in the absence of any qualification or limitation upon them, there can he but little trouble in ascertaining the legislative intent. Undeniably the designation, “ real estate,” in its ordinary sense includes the interest of a husband in a house and lot owned by himself and his wife jointly as tenants by entireties. If such an interest is not, in fact and in law, real estate, what can it be? Certainly it is not personalty. So naturally does it fall within the meaning of the words “real estate,” as employed in the statute, that they must inevitably be held to embrace it, there being nothing in other parts of the act, or in its history, indicating, even remotely, that the law-makers used those words unadvisedly or intended to omit or exclude such an interest from the protection of the statute. Moreover, the object of the statute, as well as its language, demands this construction. It was conceived that an exemption law protecting $1,000 worth of real estate to heads of families owning the same, would be wise legislation and promotive — 88 — of the public welfare. To be so, it must be impartial, and apply alike to each head of a family owning “ a homestead, or real estate,” whether in fee, for life, leasehold interest, legal or equitable estate. The nature of the estate, or extent of the title of the beneficiary, was not of the essence of the scheme. The purpose was to stay the hand of the creditor' as against a limited amount, in value, of real estate, of whatever character, belonging to any citizen who should be the head of a family. It was known, unquestionably, that different persons, entitled to the same protection, owned different interests and different estates, in land, and terms broad enough to include them all were employed. Why not include the head of a family who owns land as tenant by entirety with his wife in the scope of a law whose purpose is so humane and commendable? To the extent of his interest he can use the land for the shelter, support, and benefit of his family in the same manner as could another man owning the absolute fee. He stands in the same or greater need of the law’s favor. Is he any the less deserving of protection because he does not own the whole estate ? Or is the officer of the law to take what he has because he has not more? Manifestly not. The protection of such an interest is clearly within the spirit and the letter of the statute. We can conceive no satisfactory reason why the Legislature should not have intended to embrace in this wholesome pro — 89 — vision all present interests in land naturally embraced in the language used in the Act. Again, under the authority of Ames v. Norman, 4 Sneed, 682, the estate of G. ~W. Shelton in the house and lot in question here,' might, before the deed of trust, have been seized and sold at law, and the purchaser at such a sale would have become vested with the “right to occupy and enjoy the rents and profits of the land during the joint lives” of Shelton and wife, and, in case Shelton survived her, with the fee. How, can it be that an interest in land which is so subject to seizure and sale, and the sale of which will vest in the purchaser the right to the full enjoyment of the whole property during the life of the debtor at least, is not real estate within the contemplation of the homestead law? ¥e think not. If the creditor’ in right of the husband may take the whole property, at all events, during the life 'of the latter, so the husband, in his own right, may invoke the protection of the law for the whole property during the same period. The husband’s estate under the deed, augmented by his marital interest in his wife’s estate, becomes practically tantamount to the whole estate during their joint lives. It is so held in favor of his creditors seeking á sale, or in favor of purchasers at judicial sale; for like reason it must be so held in his favor when he asserts his claim for homestead. That property held by husband and wife by entireties could not “ inure to . the benefit of his — 90 — widow and children” upon his death, but would vest in her absolutely by right of survivorship, is not a sufficient reason for denying his right of homestead therein while they both live. If so, then the right of homestead could never exist in favor of a life tenant, for his estate ceases with his death, and nothing can “inure to the benefit of his widow and children” as homestead. But the right of homestead does exist in a life estate (9 Lea, 548), and in “leasehold property” (Code, §2988), though the period of the lease may terminate in the life-time or at the death of the lessee. The meaning of the statute is that, in lands descending from the husband and father, the homestead “ shall inure to -the benefit of the widow and children.” ■We cannot believe, in the absence of an express declaration to that effect, in the face of the law itself, that the framers of our Constitution, and the members of the G-eneral Assembly, intended to extend the benefits of the homestead exemption to citizens owning real estate in severalty, and not to those owning it jointly with their wives as tenants by the entirety. A law making such a distinction would, in our judgment, he both impolitic and unjust. It would be an unjustifiable discrimination in favor of some persons and against others alike deserving of the law’s favor and protection. Such is not our law, which, as we understand it, is distinctly impartial, extending the right of the exemption to “ each — 91 — lieacl of a family owning real estate,” whether iu fee, for life, for /ears, in severalty, in joint tenancy, etc. The case of McRoberts v. Copeland, 1 Pickle, 211, is not’ in point. There a husband and father conveyed a tract of land to his daughters, reserving a life estate to himself and his wife. The Court held that after his death his wife took the life estate by survivorship in her own right, and that it should not be “ reckoned as a part of his land in the assignment of homestead and dower” to her as his widow, because “ all his title and interest in that particular tract of land ceased absolutely with his death.” Ib., 212, 213. The husband’s right of homestead exemption in the reserved life estate was in no sense involved, and could not have been under the facts of that case, it arising after all his interest had passed away. Had he made the claim of such right in his life-time, it should have prevailed; but how that would have been the Court was not called upon to express an opinion, and could not properly have done so. As to the case of Avans v. Everett, 3 Lea, 76, wherein it was decided that the right of homestead did not exist in land held by tenants in common, we content ourselves with the observation that its reasoning (which we do not feel called upon to approve) has no application to this case, because here the debtor’s interest is practically equivalent to an estate for life, at the least, in — 92 — severalty, and is not an undivided interest merely, as in that case; that if sound upon its own facts, which we do not decide, the doctrine of that case should not he extended. In Mary C. Cullom v. John A. Cooper et als., decided at the December Term, 1888, the question was exactly the same as that involved in the present case, and the decision was against the claim of homestead. "With the greatest care we have reconsidered the question, and now decide it otherwise, holding that the right of the homestead exemption does attach to real estate owned by husband and wife jointly as tenants by entireties. For reasons already stated, it is clear that G-. W. Shelton was entitled to' homestead in the house and lot, subject alone to the deed of trust. The judgment of the Circuit Court granting Mrs. Shelton a divorce, vested her with the same right. She is now entitled to an exemption in the surplus proceeds of the -property, the same to be reinvested according to law. 3 Pickle, 290. Keverse the decree as to homestead, and enter decree in accordance with this opinion. Complainants will pay costs of appeal.