Opinion
No. 31171.
April 16, 1934.
EXECUTORS AND ADMINISTRATORS.
Where deceased share tenant left nothing except exempt property, administration was unnecessary; hence widow and children having unsuccessfully demanded tenant's share from landlord could recover in replevin (Code 1930, sections 1410, 1656, and section 1766 as amended by Laws 1931 [Ex. Sess.], chapter 18).
ON SUGGESTION OF ERROR. (Division B. May 14, 1934.) [154 So. 727. No. 31171.]1. LANDLORD AND TENANT.
Relation between person furnishing house, land, and farm implements and person furnishing labor under arrangement whereby each was to have one-half of crops produced held that of landlord and tenant rather than cotenants, and hence tenant could replevy his share of crops from landlord.
2. JOINT TENANCY. Tenancy in common.
Each of cotenants and tenants in common is entitled to possession, but not to exclusion of the other, and remain joint tenants until division is made or partition proceedings instituted.
APPEAL from Circuit Court of Simpson County.
Edwards Edwards, of Mendenhall, for appellants.
According to section 1410 of the Code of 1930 the property descended directly to the wife and children.
Whitley v. Stevenson, 38 Miss. 113; Coleman v. Brooks, 37 Miss. 71.
The husband's personal property which is exempt from execution, descends, upon his death without a will, directly to the widow, and vests absolutely in her, and is not therefore subject to administration by the chancery court.
Holliday v. Holland, 41 Miss. 530; Mason v. O'Brien, 42 Miss. 429; Hardin v. Osborne, 43 Miss. 536; Birmingham v. Birmingham, 53 Miss. 611; Grafton v. Smith, 66 Miss. 411, 6 So. 209; Section 1766, Code of 1930.
This was personal property in value less than two hundred fifty dollars and this was all his estate and is exempt from execution.
Bernheim v. Andrews, 65 Miss. 28, 3 So. 75; Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630; Hartfield v. Anderson, 126 So. 830; Alexander v. Zeigler, 36 So. 536; Schilcht v. Callicott, 76 Miss. 487, 24 So. 869. Hilton Hilton, of Mendenhall, for appellee.
In the administration of estates it is necessary for the administrator to determine the solvency or insolvency of the estate.
This provision is made by section 1724 of the Code of 1930, and provides that funeral expenses and the expenses of the last sickness of the deceased shall be preferred claims, and it is the duty of the administrator to pay the preferred claims out of the first money realized out of the sale of any assets belonging to the estate.
If the things set forth in section 1643, Code of 1930, constitute assets, it is our contention that the same are subject to the claims of creditors, especially the expenses due on account of the last illness of the deceased, and it would have been proper for the widow to have applied for letters of administration, or, for any other creditor, after the expiration of thirty days to have applied therefor.
As to the proposition that plaintiffs in the court below were not entitled to the exclusive possession of the cotton in question, we have no doubt, as this proposition has been settled a number of times by our courts.
Staple Cotton Cooperation Association v. Hemphill, 107 So. 24.
During the year 1932, Jim Williams, the husband of Fannie Williams and the father of the other plaintiffs, grew a crop of cotton on shares, or halves, upon the land of the appellee, J.B. Sykes. Williams made eleven bales of cotton that year. Three bales were turned over to the government for the purpose of satisfying a loan, and the government allowed Williams therefor nine and one-half cents per pound. Three bales were turned over to Sykes, and the remaining five bales were placed upon the premises of Sykes' father, in which five bales Sykes had a one-half interest, and the widow and children of Jim Williams were entitled to one-half. Demand was made by them upon J.B. Sykes for the two bales of cotton involved in this suit, which demand was refused; a writ of replevin was sued out; the property was seized; and bond was given by Sykes.
There was a plea of abatement filed in the justice of the peace court alleging that Jim Williams died intestate on the ____ day of December, 1932, and that no letters of administration had been taken out upon his estate. The judgment there was in favor of the plaintiffs.
An appeal was taken to the circuit court, where it was testified to by the plaintiffs that they had made demand upon Sykes for the cotton, which had been refused, and that the writ of replevin was issued after such refusal, and that Jim Williams had no other property than the cotton, having inadequate household, in addition to the cotton, to make up the exempt property allowed by law. It was further testified to that the three bales of cotton, above mentioned, had been turned over to the government to satisfy their loan, and there was a check for the difference between the amount borrowed and the price of the cotton sent, payable to Jim Williams by the government, which Williams placed in the bank in the name of J.B. Sykes; but, prior to Williams' death, he had drawn out the money through the signature of Sykes. That after turning over to Sykes three bales, there were five bales left, and that the plaintiffs owed some one an account, and they left the fifth bale, of which they owned one-half and Sykes one-half, to be applied on the debts owing by Williams. It further appeared that Sykes claimed he should have one-half of the advanced price paid for the cotton by the government over the local price at which the cotton was sold where the parties lived.
It was admitted that no letters of administration had been taken out, and at the conclusion of the evidence a motion was made for a directed verdict, which motion was sustained by the court, from which this appeal is prosecuted.
The grounds upon which the motion for a directed verdict were based are as follows:
1. The plaintiffs were attempting to bring the replevin suit without having first administered on said property.
2. Substantially the same ground.
3. Because there was no identification of the property attempted to be recovered, as required by law.
4. Because the evidence does not show that the plaintiffs are entitled to the immediate and exclusive possession of the property replevied.
5. The proof shows that if the plaintiffs have any interest in the property replevied, it is a joint interest with their landlords, the defendants, and a replevin will not lie.
6. The proof shows that the relation of landlord and tenant existed between Jim Williams and Sykes, and that the cotton had not been separated between landlord and tenant. And
7. That the property attempted to be replevied grows out of the relation of landlord and tenant and is governed by the proceedings under the chapter on Landlord and Tenant.
Under section 1410, Code 1930, exempt property, both real and personal, descends to the wife and children of the deceased. Under section 1656, Code 1930, appraisers of the estate, where there is administration, must set aside to the widow and children the property exempt by law, and further provides that such action of the appraisers shall not be necessary to the title of the widow and children to the exempt property, which shall vest in them by operation of law on the death of the husband and father. In addition to the exempt property being set aside in administration proceedings, a year's support for the wife and children is also set aside.
As the proof in the case at bar shows there was no other than exempt property, and the title to the property involved vested in the wife and children by operation of law, no administration was necessary to recover this property.
Under section 1766, Code 1930, as amended by Laws 1931 (Ex. Sess.), chapter 18, exempt property of the value of two hundred fifty dollars may be selected by the exemptionists.
Under these sections, the title of the wife and children to this exempt property vested by law; no administration was necessary, and they had a right to the possession of the property on demand. See Alexander v. Zeigler, 84 Miss. 560, 36 So. 536, where it was held that replevin would lie to secure property where the relation of landlord and tenant existed, and therefore it was not necessary to take any proceedings under the landlord and tenant chapter.
The plaintiffs being entitled to one-half of the cotton, it was the duty of the defendant, on demand, to deliver their one-half to them.
As the plaintiffs' proof appears in the record undisputed, the defendant having introduced no testimony at all, it was error for the court below to grant a directed verdict and thereon render judgment. The judgment is, therefore, reversed, and the cause remanded for a new trial.
Reversed and remanded.
ON SUGGESTION OF ERROR.
In the former decision, we held that, where one person was working land for another on shares, the landlord furnishing the house, land, and farming implements, and the tenant the labor, each having one-half of the crop produced, the relation of landlord and tenant existed, and that replevin by the tenant against the landlord for the possession of his share of the crop was maintainable.
In the suggestion of error it is contended that the joint owners of property have each an equal right to the possession of the joint property, and that replevin will not lie in favor of one as against the other, citing Holton v. Binns, 40 Miss. 491, and Doty v. Heth, 52 Miss. 530, and contending that these decisions have not been clearly overruled in Schlicht v. Callicott, 76 Miss. 487, 24 So. 869, and Alexander v. Zeigler, 84 Miss. 560, 36 So. 536. In support of this argument, counsel cite and rely upon Staple Cotton Co-op. Association v. Hemphill, 142 Miss. 298, 107 So. 24, 26, wherein we said that "There seems to be some difference in the holding of this court in Doty v. Heth, 52 Miss. 530, and the holdings in Schlicht v. Callicott, 76 Miss. 487, 24 So. 869, and Alexander v. Zeigler, 84 Miss. 560, 36 So. 536. The first case, Doty v. Heth, seems to hold that the landowner and the share cropper are cotenants of the farm products grown upon the premises, while the last two cases seem to hold that the relation of landlord and tenant exists, and that the rights of third persons are governed by the law of landlord and tenant. Without undertaking to decide which is the correct holding, but treating the case as though the landowner and the share cropper were cotenants, but not so deciding, we think the suit of the plaintiff must fail, because it is not entitled to the immediate possession of the property to the exclusion of the tenants, and that it must be entitled to the immediate possession of such property as against both the landlord and the tenant, and the landowner and the share cropper, before it is entitled to the remedy by replevin created by chapter 275, Laws of 1924. Under the provisions of that statute . . . it is provided that all co-operative marketing associations organized or doing business under the laws of the state of Mississippi may obtain possession of personal property to the immediate possession of which they may be entitled."
In the case of Holton v. Binns, 40 Miss. 491, it was held that joint owners of personal property have each an equal right to the possession of the joint property. It is in no wise applicable to the suit before us now.
The decision in Doty v. Heth, 52 Miss. 530, was not based on replevin, but it was a suit in the chancery court to establish a lien. The pronouncement that share croppers and landlords were cotenants, if authority, was overruled by Alexander v. Zeigler, 84 Miss. 560, 36 So. 536, and impliedly overruled by the case of Schlicht v. Callicott, 76 Miss. 487, 24 So. 869, these two cases being later than the case of Doty v. Heth, and are necessarily controlling. What we said in the case of Staple Cotton Coop. Association v. Hemphill, 142 Miss. 298, 107 So. 24, is not authority for the proposition contended for. That case, on its facts and the law applicable thereto, was properly decided, and it was not necessary to harmonize Doty v. Heth and Alexander v. Zeigler, supra. Had we then been required to determine whether they were inconsistent, and which were the prevailing cases, we would have been compelled to hold that Alexander v. Zeigler, 84 Miss. 560, 36 So. 536, was authority, and that the prior cases had been modified or overruled by that case.
It is clear to us that the relation between the landowner furnishing the house, land, and farming implements, and the share cropper furnishing the labor, is properly the relation of landlord and tenant, and that the tenant has the right to the possession of the crop grown, subject to the landlord's lien. His rent is measured by the amount of the crop, and it is the duty of the tenant to turn over to the landlord his share of the crop as rent for the premises. It is still true that, as between cotenants and tenants in common, each is entitled to possession, but not to the exclusion of the other, and remain joint tenants until a division is made or partition proceedings instituted. That doctrine in no manner conflicts with the pronouncement in Alexander v. Zeigler, supra.
It follows that the suggestion of error should be and is overruled.
Suggestion of error overruled.