John I. Adams & Co. v. Dees

Mississippi Supreme Court
John I. Adams & Co. v. Dees, 62 Miss. 354 (Miss. 1884)
Campbell

John I. Adams & Co. v. Dees

Opinion of the Court

Campbell, C. J.,

delivered the opinion of the court.

The exemption of a homestead from execution is by statute, and it exists only in accordance with the statute. There is no statute in this State which exempts from execution the money or credits obtained from a sale of the homestead by the voluntary act of the exemptionist. The only way for him to securely enjoy the protection of the exemption law is to keep what it exempts, or, selling it, as he may, to get for it money, which the sheriff cannot have access to, or another homestead or chattels, which are exempt. If by his voluntary act he converts his homestead into something, no matter what, which the law does not exempt, he thereby forfeits the protection which the law gives to his possession and ownership of certain designated things. . The note of Cudabac to Dees for the *358homestead sold by the latter was not exempt. It was subject to garnishment. It was therefore effects which the creditors of Dees had the right to subject, and the surrender of this note for a conveyance to Mrs. Dees did not vest the title of the former homestead in her free from the demands of his creditors. He had voluntarily withdrawn his homestead from the protection the law gave to him in its enjoyment as such, and had no right to give to- his wife the chose in action which the law made liable to his debts. His idea, even if derived from the advice of counsel, that the note given oú sale of his homestead was not subject to-the demands of creditors, and his purpose to devote the proceeds of the sale of the homestead to the purchase of another, and the belief that a conveyance by Cudabac to Mrs. Dees for the note he had given for his property would vest title in her as against his creditors, and his determination to keep within the protection of the exemption law, did not prevent the legal result of his voluntary exposure of his effects to the pursuit of his creditors.

Decree reversed and cause remanded.

Reference

Full Case Name
John I. Adams & Co. v. M. A. Dees and Wife
Cited By
2 cases
Status
Published
Syllabus
1. Homestead. Sale thereof. Note for purchase-money. Investment of same. Loss of exemption. Where the owner of an exempt homestead sells and removes from the same, and takes the purchaser’s promissory note for the purchase-money, which he subsequently surrenders for a conveyance of the former homestead to his wife, such property may be subjected by a bill in chancery to a judgment against the former owner of the homestead, existing at the time of the sale of the property, just as the note, the consideration of the conveyance to the wife, might have been subjected by a garnishment proceeding. 2. Same. Sale thereof. Loss of exemption unaffected by certain facts. And the loss of the exemption, in the circumstances above supposed, would result though connected with the facts that the owner was advised by legal counsel that the note for the purchase-money of his homestead was not subject to the demands of his creditors, that he intended to devote the proceeds of the sale of his homestead to the purchase of another, that he believed the conveyance to his wife would vest the title to the property in her free from the claims of his creditors, and that he was determined to keep within the protection of the exemption law. 3. Same. Proceeds of sale thereof — whether exempt. There is no statute in this State which exempts from execution the proceeds of a sale of a homestead, voluntarily made by the exemptionist.