Opinion
No. 28158.
November 18, 1929.
HOMESTEAD. Where wife signed separation agreement without coercion and separation followed, husband's deed to homestead without wife's signature was not void; "living with husband" ( Hemingway's Code 1927, section 1914).
Where husband told wife to leave, but no violence was offered her, and she executed separation agreement without coercion, and separation that thereafter followed was pursuant thereto, she was not "living with her husband" within meaning of Laws 1924, chapter 169 (Hemingway's Code 1927, section 1914), providing that conveyance of homestead owned by husband is not valid, unless signed by wife, if he be married and living with her, and husband's deed to homestead without wife's signature was not void.
APPEAL from chancery court of Prentiss county. HON. CHAS. S. MITCHELL, Chancellor.
J.A. Cunningham, of Booneville, for appellants.
Abandonment is a fact to be proved. From the statute it seems that ceasing to reside on it without the purpose of speedily reoccupying it as soon as the cause of the absence can be removed, amounts to an abandonment.
13 R.C.L., sec. 112; Lindsey v. Holley, 63 So. 223; Mounger v. Gandy, 69 So. 817.
Homestead laws are liberally construed in favor of the exemptionist, but never as a pretext to claim that which does not really and substantially exist.
Campbell v. Adair, 45 Miss. 170.
The character of any property as a homestead depends on intention, but it may be entirely destroyed by a removal of residence. Such removal, at any time, leaves the property standing like any other property and liable to sale or any other disposal by the owner at his pleasure.
Stanton v. Hitchcock, 8 Am. S.R. 824.
Where the wife signed separate agreement agreeing without coercion and separation followed, husband's deed to homestead without wife's signature was not void.
Hemingway's Code 1927, sec. 1914; Pannell v. Glidewell, 107 So. 273; 22 C.J., sec. 244; Johnson v. Outlaw, 56 Miss. 541; 11 Miss. So. Digest, 1918, sec. 72; 21 C.J., secs. 221-2-3.
W.C. Sweat, of Corinth, and J.S. Finch, of Booneville, for appellee.
A wife will not lose her homestead rights in property upon which she and her husband had lived when the husband, by his cruelty has forced her to leave home, or, while away from home, has informed her that she cannot come back, or when she had come back to visit her sick daughter, even over his protest, informed her that she could not remain there.
Section 1914 of Hemingway's Code of 1927; Scott v. Scott, 73 Miss. 575, 19 So. 589.
A deed to the homestead by the husband, without the wife's joining, after she has been forced away from home by the husband, according to an unbroken line of decisions of this court, is absolutely void.
Yazoo Lbr. Co. v. Clark, 95 Miss. 244, 48 So. 516; Chatham v. Poindexter, 101 Miss. 496, 58 So. 361; Bolen v. Lilly, 85 Miss. 344, 37 So. 811.
The doctrine that he who seeks equity must do equity has no application where homestead was sold by husband without wife's consent.
Young v. Ashley, 123 Miss. 673, 86 So. 478.
The conveyance of the homestead, or any part of it, by the husband alone being void, a warranty clause does not create an estoppel against him, even after the death of his wife.
Bolen v. Lilly, 85 Miss. 344, 37 So. 811, 107 Am. St. Rep. 291; 13 R.C.L., sec. 120, p. 663.
There is no such thing as a stale claim, properly so-called in this state. No claim is barred until the limitation of the statute has accrued, and the fact that, on account of the laches of the complainants, their proceedings lack only a few days of being barred, is no defense to the bill.
Hill v. Nash, 73 Miss. 849, 19 So. 707; Westbrook v. Mounger, 61 Miss. 329; Taylor v. Chickasaw Co., 79 Miss. 87, 12 So. 210.
Under our statute, a wife could not have executed to her husband a power of attorney to convey the homestead.
13 R.C.L., sec. 87, p. 628; Duncan v. Moore, 67 Miss. 136, 7 So. 221; Hubbard v. Improvement Co., 81 Miss. 616; Railroad v. Singletary, 78 Miss. 772.
This is an appeal from a decree awarding the appellee alimony, canceling a deed made by her husband to certain property, and directing the sale thereof for the payment of the alimony awarded.
The appellee and her husband lived in September, 1923, and prior thereto, in the town of Booneville, in a house situated on a lot owned by her husband, and which constituted their homestead. They separated in September, 1923, the appellee moved to another county, and they have not cohabited since.
A few months after the separation the husband sold the homestead to the board of mayor and aldermen of the town of Booneville, and moved to another state. Afterwards the board of mayor and aldermen sold the property to Taylor, who now owns it, and who, together with the board of mayor and aldermen, are parties defendant to the bill of complaint.
The appellee testified at the trial that a short time before she and her husband separated she went into Attala county to see a sick relative, and while there she received a letter from her husband, telling her not to come back — that he would no longer live with her. This she said was a shock to her, as she had no reason to anticipate receiving such a letter. She returned home, and was again informed by her husband that he would no longer live with her, and that she must leave. They thereupon executed a written separation agreement, which the reporter will set out in full. She then again went to her relatives in Attala county, and seems to have lived there since.
This separation agreement was objected to by counsel for the appellee, but the court permitted it to go in, reserving its ruling thereon until all the evidence was in.
The appellee testified that her husband had been guilty of reprehensible conduct objectionable to her, but it is clear from the evidence that she did not leave him because thereof, but for the reason that he declined to live with her. She did not claim to have been coerced into signing the separation agreement. Her husband paid her seventy-five dollars under the agreement, but did not comply with the other provisions thereof.
Near the close of the evidence she was reintroduced as a witness, and stated, in response to a question not calling therefor, that she did not know what was in the written contract. It is clear, however, that she signed it, knowing that it was a separation agreement, and received at least three payments thereunder to be made to her by her husband.
The bill of complaint was filed in June, 1927, nearly four years after the separation. In rendering its decree, the court excluded this separation agreement from the evidence, awarded the alimony prayed, canceled the deeds under which Taylor holds the property which constituted the homestead of the appellee and her husband, and ordered it to be sold for the payment of the alimony.
The appeal is by Taylor and the board of mayor and aldermen of the town of Booneville.
The paragraph of the separation agreement authorizing the husband to execute a deed to the property will be left out of view.
Under chapter 169 of the Laws of 1924 (Hemingway's 1927 Code, section 1914), a conveyance of a homestead owned by the husband is not valid, unless signed by his wife, if he be married and living with her. In Scott v. Scott, 73 Miss. 575, 19 So. 589, it was held that a deed to a homestead executed by a husband who had driven his wife away from his home, and refused to permit her to return thereto, is void. "So long as the wife has the right and the will to remain at home, she is . . . to be considered as there living within the meaning of the statute."
It is true that in the case at bar appellee's husband told her to leave, and that he would no longer live with her. No violence was offered her, and it is clear that she agreed thereto, executed the separation agreement without being in any way coerced into so doing; and the separation that thereafter followed was pursuant thereto. This being true, she cannot be held to have been living with her husband within the meaning of the statute when he conveyed the homestead to the mayor and board of aldermen of the town of Booneville. The separation agreement should have been considered by the court, and, had that been done, it would have declined to cancel the deeds. As all the competent evidence which any of the parties sought to introduce was before the court when it rendered its final decree, it will not be necessary for us to remand the case, but final judgment will be rendered here.
As the husband did not appeal from the decree, it will be reversed in so far only as it cancels the deeds to the property; and a decree will be rendered here accordingly.
Reversed, and decree here.