Opinion
No. 38118.
November 26, 1951.
1. Death — statutory presumption of death after seven years — evidence.
The statutory presumption of death after seven years ends when the person whose death is in question is shown to be alive. Sec. 1698 Code 1942.
2. Homestead — conveyance without joinder by wife — lawful wife and not pretender.
The statute which invalidates a conveyance or other incumbrance of the homestead unless signed by the owner's wife, if she be living with him, has reference to a lawful wife and does not include a woman who had pretended to marry the owner when she already had a husband, living then and still living, from whom she had not been divorced. Sec. 330 Code 1942.
Headnotes as approved by Holmes, C.
APPEAL from the chancery court of Claiborne County; R.W. CUTRER, Chancellor.
Dabney Dabney, for appellants.
Contended that there was no proof that the alleged previous marriage of Amy to Monroe Shows was a valid marriage; no authorities cited on the point.
Drake Gage, for appellee.
I. The proof in this case shows without dispute that the said Amy Johnson and the said Monroe Shows were married prior to the time of any purported marriage between appellants, Charlie Johnson and said Amy Johnson, and that as neither had obtained a divorce from said marriage, so that any purported marriage thereafter between the said Amy Johnson and Charlie Johnson was null and void, as a person who had a living husband or wife may not contract another marriage unless the former marriage has been dissolved or annulled by the decree of a competent court. Divorce and Separation in Mississippi, Amis, p. 23; Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150.
II. Answer of appellees to certain conditions and points raised by appellant in his brief.
The presumption of death following an absence of seven (7) years by the husband is not applicable to the case at bar, as the husband kept in touch with various relatives of his living near the wife and wife made no inquiries of these relatives or any other efforts to locate the whereabouts of said husband. Watson v. Watson, 177 Miss. 767, 171 So. 701.
On December 8, 1945, appellant, Charlie Johnson, was the owner of a tract of land in Claiborne County comprising approximately 35 acres, and on that date, he executed a deed of trust on the land to M.M. McFatter to secure an indebtedness of $2,100. He alone signed the deed of trust, representing himself therein to be a single man. The deed of trust was later assigned to Dannie Lee and was foreclosed and Dannie Lee became the purchaser of the land at the foreclosure sale, and the land was accordingly conveyed to him by the duly and lawfully appointed substituted trustee. At the time of the execution of the deed of trust, appellants, claiming to be husband and wife pursuant to a ceremonial marriage performed on July 7, 1945, were occupying the land as a homestead. On March 24, 1949, appellants brought this suit in the Chancery Court of Claiborne County to cancel as void the aforesaid deed of trust and substituted trustee's deed upon the alleged ground that appellant Amy Johnson, the claimed wife of appellant Charlie Johnson, did not join in the execution of said deed of trust as provided in Section 330 of the Mississippi Code of 1942.
On the hearing of the cause, the chancellor found that at the time of the pretended marriage of appellants, the said Amy Johnson had a living husband from whom she had never been divorced, and that her purported marriage to the said Charlie Johnson was invalid, and that her signature to the deed of trust was not necessary to its validity. The chancellor accordingly dismissed the original bill, and the appellants appeal from the decree entered.
The undisputed proof is that at the time of the purported marriage of appellants, the said Amy Johnson had a living and undivorced husband, namely, one Monroe Shows, who appeared in person at the trial and testified. It is contended by appellants, however, that the said Monroe Shows had separated from Amy Johnson and that she had not heard from him in about twenty-eight years, and they seek to invoke the presumption of death under Section 1698 of the Mississippi Code of 1942. The affirmative proof is, however, that although the relatives of Shows were known to Amy and that they were living in nearby communities, she made no inquiry of them to ascertain his whereabouts or whether he was living or dead. (Hn 1) Moreover, the undisputed fact is that he was alive, and under the express terms of the statute, the presumption of death thereby created ends when the person whose death is in question, is shown to be alive. Watson v. Watson, 177 Miss. 767, 171 So. 701.
The chancellor, therefore, was manifestly correct in finding that (Hn 2) Amy Johnson was not the lawful wife of Charlie Johnson at the time of the execution of the deed of trust, and in dismissing the original bill. The decree of the court below is accordingly affirmed.
Affirmed.
The above opinion is adopted as the opinion of the Court and for the reasons therein indicated, the judgment of the court below is affirmed.
Hall, J., took no part in the decision of this case.