Opinion
No. 33644.
April 10, 1939. Suggestion of Error Overruled May 8, 1939.
1. TRESPASS.
The allowance of statutory penalty for cutting trees on defendants' homestead was improper, where land constituting homestead had not been designated when trees were cut, and notice not to cut trees and affidavits prosecuting those who cut trees contained no description of homestead.
2. SUBROGATION.
Where money paid for timber was used by vendor to discharge incumbrances against property and vendor refused to permit timber to be cut on all the property, the purchaser, who sought to enjoin interference with cutting of timber, was entitled to have liens revived and to be subrogated to rights of holders.
3. INJUNCTION.
The purchaser of timber on land including vendor's homestead was properly enjoined from cutting timber on the land assigned as a homestead, and was entitled to enjoin the vendor from interfering with cutting of timber on the other land.
4. SUBROGATION.
Where purchaser of timber whose payments had been used to discharge incumbrances against property was entitled to be subrogated to rights of holders of original liens against property, purchaser was given right, upon failure of vendor and his wife to pay to purchaser amount of judgment rendered against them within time permitted, to have their rights in property other than their homestead sold to pay the lien.
APPEAL from the chancery court of Grenada county; HON. L.A. SMITH, SR., Chancellor.
W.I. Stone, of Coffeeville, for appellant.
We thought it was a monstrous proposition in the first appeal where a man was allowed to come into court against the grantee in his deed, and with no showing whatever of having withdrawn his consent that his grantee cut the timber that he had bought and paid for, and without any declaration of homestead, informal or otherwise, get a judgment for the actual value and the statutory penalty for taking the very trees covered by his deed, and get this by joining in his claim his wife who never has had a deed to the land and who is not the owner of the land and who had never informally or otherwise designated her homestead or brought home to the grantee in the deed any designation, informal or otherwise, of her claim of homestead. Imagine our consternation and dismay when we had been vindicated in our appeal and go back to the Chancery Court and allow these same people, by the simple expedient of having a homestead designated, to get the judgment of the court that the designation of homestead is retroactive and has the power to overturn all the law that has been declared in this case. We cannot believe that any set of commissioners in any case on earth can give any such power to its designation of homestead.
There are no authorities so far as we can find for this extraordinary action of the court in making the designation of the homestead retroactive, except Chapter 1768 of the Code in speaking of the effect of a declaration of a homestead by a citizen such as is provided in the preceding section, says: "The declaration . . . after being filed for record shall be notice to all persons to be effected thereby." We have always been impressed and we think sufficiently so with the power of the homestead laws but we respectfully and earnestly submit that the distinguished Chancellor in this case has certainly given it an unwarranted power, and one with unlimited powers of abuse by unscrupulous persons. It is inconceivable that this whole case can be turned around and its final outcome made to depend not on the decision of the court but on a whim of a bunch of commissioners going out to designate a homestead.
As to the statutory penalty, the most complete statement as to the report and action justifying the statutory penalty is Seward v. West, 168 Miss. 376, 150 So. 364, and while the court went fully into this proposition and the statutory penalty should not be allowed except in cases where there is culpable fault or omission, being designed chiefly as punishment and being quasi criminal and stating that culpable means that which is deserving of moral blame. Quoting another case in this same opinion: "The statutory penalty is recoverable only in cases of wilful trespass or of inexcusable negligence to take proper precaution for avoiding the trespass." How anyone can place the Bruce Company in this class when they bought the timber on four hundred and twenty acres in good faith and paid for it and were putting men on to cut it and when threatened and menaced so that they were unable to proceed, simply asked the court to force these people to commit themselves properly and legally on the homestead and make them pay back the money that they had received for the homestead timber, is more than we can comprehend. Frankly, we submit that we generally look at a matter from our own standpoint but we cannot imagine what else could have been done by Bruce; he did not try to go ahead and take it by force, he appealed to the law, he offered to sell them back the timber on whatever homestead was designated, and he went further and said that if they would withdraw the objection he would go on and get his timber and call it a day. Of course, we maintain that they are absolutely barred on account of the showing of consent by the owner to cut it, when the burden is always on the plaintiff to show the non-consent of all parties owning, but this aside, there is not in this case one iota of testimony justifying the imposition of statutory damages as a penalty.
W.M. Mitchell, of Grenada, for appellees.
The Chancellor after hearing the evidence in this case for the second time found as a fact that the deed from J.T. Spears to the Robert G. Bruce Company was void as to the homestead of these appellees, for the reason that the wife did not join therein, and found that said homestead consisted of the SW 1/4 of Section 29, Township 23, Range 7, East, Grenada County, Mississippi, his first finding as to this being confirmed by the commissioners appointed to determine and set apart said homestead, in accordance with the directions of the Supreme Court in the former hearing thereof; and found as a fact that the agents of the Bruce Company deliberately and defiantly went upon and cut forty-nine trees thereon of the actual value of $47.59, after having been time and again notified and warned not to do so, and there, therefore, they became liable to the appellees for the statutory damages therefor, being the amount of $15 per tree, the proof showing without contradiction that they were all oak trees; and found that they were entitled to recover said amounts less the value of the timber on said homestead. These findings, we respectfully submit, were amply justified by the evidence in this case.
Nobody, of course, can now question the finding that the SW 1/4 of Section 29 was the homestead of the appellees, this having been finally and uncontestably established by the report of the commissioners legally appointed for that purpose; and, of course, nobody questions the fact that a conveyance made to a homestead without the joining therein of the wife is void; this having been decided in case after case by this court.
If the theory of counsel for the appellant were true, if only those who have had the foresight and thoughtfulness to go to the trouble and expense of filing a legal declaration of their homestead could exercise their right to warn away trespassers on this homestead and to hold them legally liable for committing such trespasses and causing destruction and loss to the owners, then there would be few indeed of the owners of homesteads who would have any protection under the homestead laws and decisions, for the reason that a very large majority, especially of farmers, own more than the statutory limit of 160 acres, and few indeed have made such statutory declarations of homestead, setting off a certain 160 acres out of their larger holdings of lands as their homestead. We respectfully submit that such a construction would practically nullify the benevolent spirit of these homestead laws, and render of little value the decisions of this court made in the laudable design to throw around these homes every possible protection.
We, therefore, submit that this court will not take such a view, and that the court in its opinion on the former hearing of this cause did not in fact, and did not intend to, leave any such construction of the homestead law, but that the only reason the court held it necessary to reverse and send back this case was, as stated by Judge McGowen, that it was essential for the proper and just determination of the rights of the parties to be fully and thoroughly determined and awarded, that this homestead should be legally set apart and designated before a final decision could be made of the case.
There is not a scintilla of evidence in this record upon which the court was authorized to grant the extension of time to the appellant in which to cut and remove any timber which might remain on the other lands of J.T. Spears, if any. Even the existence of any timber there is a pure supposition, without any basis for it, so far as the record here shows.
We respectfully submit that the decree of the Chancellor was correct, and should be affirmed, except as to that portion thereof which granted to appellant this extension of time in which to cut and remove his timber, and should be reversed as to that.
Cowles Horton, of Grenada, for appellees.
Argued orally by W.I. Stone, for appellant, and by W.M. Mitchell, for appellee.
This is the second appearance of this case in the Supreme Court, the former appearance being reported in 181 Miss. 786, 181 So. 333, under the style of Robert G. Bruce Co. v. Spears et ux. The facts of the case, as they appeared in the original suit and at the time of the appeal first prosecuted here, are fully stated therein, and need not be repeated in this opinion. In that case the Court held that the Chancery Court could not select the homestead, nor could Spears and his wife do so, under the facts of the case; but that the Court should appoint commissioners to set apart a homestead under the statute referred to in the former opinion; and the case was reversed and remanded.
On the case being remanded, the commissioners were appointed by the court, and they set apart, as a homestead, the SW 1/4 of section 29, T. 23, R. 7 East; and the court found the actual value of the timber cut from the said SW 1/4 of section 29 to be $47.59, and that there was due to the complainant, appellant here, $375, with 6% interest from the date of the deed and the payment of the encumbrance on the lands of the appellees. The court also awarded the statutory penalty of $15 for each of the 49 trees cut upon the SW 1/4, above described, and set off the $375 as against the statutory penalty and the actual value of $47.59, and rendered judgment against the appellant for $421.96, with 6% interest per annum from this date, and adjudged that the complainant was entitled to everything carried by the deed except the right to remove trees from the SW 1/4 of section 29, which is adjudged to be the homestead, and divided the costs, so that complications were adjudged to pay two-thirds and defendants one-third thereof. In the former decree the court allowed the time to cut and remove the timber from the land other than the SW 1/4 section 29, T. 23, R. 7 East; and allowed the complainants, the Robert G. Bruce Company, until January 21, 1941, in which to cut and remove the timber on the other lands; and the court adjudged that the homestead selected by the commissioners related back to the time of the contention retroactively, and allowed the statutory values as above sated.
The record shows, without dispute, that when the appellants bought the timber from J.T. Spears there was a deed of trust upon the lands involved, including the SW 1/4 of section 29, T. 23, R 7 East, which deed of trust was signed by both J.T. Spears and his wife, constituting a valid lien upon the homestead; and that the money received from the appellant was used and consumed in paying off this prior encumbrance, and in redeeming the land which had been sold for taxes, and in paying current taxes then due on the lands.
The original deed to the timber and the land here involved also covered lands of the appellee J.T. Spears' mother, Elizabeth Spears. His wife, whose name was Elizabeth Spears also, did not own any of the land embraced in the deed. The attorney for the appellant, who drew the timber deed and attended to the payments of the encumbrancers out of the money received from the appellant, testified that he was under the impression at the time of the execution of the deed that the appellee, J.T. Spears, was a widower. It therefore appears that J.T. Spears sold the timber on all the lands involved, consisting of 424 acres, and that he lived on the SW 1/4 of the lands conveyed to the appellant in his deed. The map in the record in the original appeal shows that the residence of the appellee, Spears, was situated on the NW 1/4 of the SW 1/4 of section 29, at least the position on the map so indicates, and no homestead declaration was on file, or has since been filed, setting apart the homestead by the owner, and it was uncertain, in the attitude of the record, when the case was here before, as to what lands constituted the homestead; and a commission was required to designate such homestead. It was within the power of this commission to have designated other lands in part; instead of the entire SW 1/4, lands to the north and to the east of the homestead could have been included. The lands constituting the homestead, therefore, had not been designated when the 49 trees were cut on the SW 1/4.
Under the facts and circumstances of the case, we are clearly of the opinion that it was improper to allow a statutory penalty for the 49 trees so cut. In giving the notice not to cut trees upon the homestead, there was no description of the homestead therein, nor was it described in the affidavits prosecuting those who cut the trees, and the agents or persons who cut the timber on the SW 1/4, and on other parts of the land.
As the money of the appellant was used to discharge the encumbrances against the property bought from Spears, and inasmuch as the contract could not have been made without removing the liens, on any reasonable basis, when the bill was filed the appellant was entitled, on the refusal of appellee to permit the timber to be cut on all the property, to have revived the deed of trust and tax liens, and be subrogated to the rights of the holders, whose claims appellant's money had paid. It is true that the failure of the wife to sign the timber deed made the conveyance ineffective as to the homestead, whatever it was; but the wife did not own the property, and her rights in the matter were limited.
The court should have rendered a decree for the appellant for the $375, with interest at 6% per annum from the date of payment of the encumbrancers, and of the deed from Spears, and should have revived the lien discharged with appellant's money in his favor, subrogating the appellant to the rights of holders of the original liens as against all of the lands except the homestead; and should have enjoined the appellees from interfering with the cutting of timber on the other lands, and extended the time for the cutting, so that the timber might be cut and removed from the other lands; and as the Chancellor found January, 1941, to be a reasonable time, that judgment will be accepted. And as the Chancellor enjoined the appellants from cutting timber on the SW 1/4, that land having been assigned as a homestead, his action will be adopted and approved here.
The judgment of the court below, awarding statutory penalty, will be reversed, and judgment rendered here, awarding the appellant $375, less the $47.59 for the trees cut on the homestead — their actual value. And the decree here will direct that the appellees pay the amount of this sum within ninety days from the handing down of this opinion; if not paid within that time, the rights of the appellees in the other lands than the homestead shall be sold to pay such lien, to which the appellant is subrogated. The right of the appellant to subrogation was fully covered by the announcement of this Court in Box v. Early, 181 Miss. 19, 178 So. 793.
The costs in this appeal to be taxed against the appellees, and the costs in the court below to be divided equally between appellant and appellees.
Reversed and rendered.