Mississippi Supreme Court, 1936

Eastman Gardiner Lumber Co. v. Carr

Mississippi Supreme Court · Decided March 16, 1936 · McGowen

166 So. 401; 175 Miss. 36; 1936 Miss. LEXIS 28 (Southern Reporter)

Counsel

Welch Cooper, of Laurel, for appellants. The homestead right is a privilege and not a vested right, the validity of which depends on conditions existing when application is made. Section 1765, Code of 1930. It is the contention of appellants that section 1776 is the controlling code section. That is to say, the homestead right ceased when Mr. Carr and his wife ceased to reside on the property, their absence not being "temporary by reason of some casualty or necessity and with the purpose of speedily reoccupying it as soon as the cause of the absence can be removed." Actual residence and occupancy of the land as a home by the family is essential to giving it the character of a homestead. Tanner v. Tanner, 111 Miss. 460 , 71 So. 749; 29 C.J., Homestead, sections 46, 48, and 53. Constructive possession is not sufficient. Moving furniture in and getting ready to occupy is not sufficient. Chrismand v. Mauldin, 130 Miss. 259 , 94 So. 1; Meyer Bros. Drug Co. v. Fly, 105 Miss. 752 , 63 So. 227; Bank v. Mollere, 118 Miss. 154 , 79 So. 87. If Carr could not have claimed the land as exempt to him as his homestead during his lifetime, then Mrs. Carr cannot claim it as exempt now. Kimbrough v. Powell, 143 Miss. 498 , 108 So. 498 ; Thompson, Lampkin Co. v. Tillotson, 56 Miss. 36 ; Salter v. Embrey, 18 So. 373; Majors v. Majors, 58 Miss. 806 . Our understanding that the appearance of Mr. Tullos was for all of the heirs at law and that he was expressly authorized by them to so appear and waive the service of process is now confirmed to us by Mr. Tullos. Even if this is not true, we think that this court would have jurisdiction of the matter to review the action of the chancellor. We confess, of course, that if there was no process for the heirs at law and no appearance by them, they would not be bound by such decree as the court might make, but we submit that the court below could inquire into the matter to determine if the land was probably subject to debts so as to direct the administratrix in regard thereto. If the court decides as it did decide on this hearing that the land is exempt, there is no point in having the heirs at law summoned. In other words, it would seem perfectly proper for the court to make a preliminary inquiry and have a hearing on the petition to determine if a sufficient showing was made to direct the administratrix to have the heirs at law brought into court to answer the demands of creditors. H.M. McIntosh, of Collins, and R.S. Tullos, of Raleigh, for appellee. To constitute an abandonment of a homestead by reason of removal for business purposes, there must be in addition an intent not to return to the property as a home. A removal for temporary business purposes will not debar the debtor from his exemption if he continually purposes to return. 29 C.J. 940. A temporary residence elsewhere will not work a forfeiture. There must be a removal with intention of abandonment. 53 Miss. 787 ; Jackson v. Coleman, 76 So. 546, 115 Miss. 535 ; Gilmore v. Brown, 46 So. 840. The determination of every case should be dependent upon the facts of that particular case. It is well settled in this state that the homestead laws are construed liberally and favorably to the debtor. Jackson v. Coleman, 76 So. 546, 115 Miss. 535 . Argued orally by W.S. Welch, for appellant.

Opinion of the Court

McGowen, J.,

delivered the opinion of the court.

The appellants, Eastman, Gardiner & Co., Frank Gardiner Hardware & Supply Company, and the First National Bank of Laurel, Miss., filed a petition in the chancery court setting up their unpaid debts and the insufficiency of the personal property to pay the debts due by the estate of J. R. Carr, deceased, alleging that Mrs. Belle Carr, the administratrix, had refused to sell certain land, and praying that said administratrix be cited to show cause why said land should not be sold, or that she be removed as such administratrix.

Mrs. Belle Carr, administratrix, answered, setting up that the land described in the petition was not subject to sale, that same was exempt to the decedent in his lifetime, having been occupied as a homestead, and it was therefore exempt to her.

In the petition of the named creditors, there was no effort to make the heirs at law of the decedent parties to that proceeding. From another part of the record we learn that Mrs. Belle Carr, administratrix, was the wife of the decedent at the time of his death, and that Mrs. Willie Wyatt and Mrs. Bobbie Lorio are the adult children of the decedent.

Section 1693, Code of 1930, authorizes and empowers creditors, upon a proper showing, to file a petition for the sale of land or personal property of the decedent for the payment of debts. Section 1694 requires that, when such petition is filed, all parties interested shall be cited by summons. It does not appear that the administratrix in the case at bar had any interest in the *40 land. Section 1695 authorizes the court, in a proper case after the service of summons, to decree the sale of 'land to pay debts. The daughters above named were in no wise made parties to this proceeding. The widow, as such, was not a party, and we will not stop now to inquire as to whether or not a decree adjudging the property subject to sale would be res judicata as against her in the state of this record. '

The court below rendered a decree adjudging that the land sought to be sold was exempt and not subject to sale, and the creditors have appealed therefrom.

The record in the court below is barren of any effort to have the proper parties in court in that proceeding. A paper is filed here by the attorney who appeared for the administratrix in the court below, stating that he appeared there for all the parties. The effort is to present to this court that which did not exist of record at the time the decree was entered in the lower court.

Title to land is involved here, and the statute relating thereto must be complied with. A decree for the sale of land to pay debts which affects the rights of heirs at law or devisees of a decedent, and which is rendered without process upon them, is void.

There is an amendable petition on the part of the creditors to sell the lands to pay the debts, and, in order that an issue may be made up and tried in the court having jurisdiction, with the interested parties before it, either by process or waiver, as the adult parties may desire, this ease must be reversed and remanded. Campbell v. Brown, 6 How. 106, Williams v. Childress, 25 Miss. 78, and Root v. McFerrin, 37 Miss. 17, 75 Am. Dec. 49.

In the state of this record, we express no opinion as to whether or not the land was exempt as the homestead of decedent.

Beversed and remanded.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.