Irwin v. Lewis

Simrall, J.,

delivered the opinion of the court.

Two points have been made and argued in this court, in opposition to the decree of the chancery court.

Eirst. That Lewis, the appellee, did not have a homestead exemption in the premises levied upon by the judgment creditorsf the appellants.

Second. That a court of chancery had no jurisdiction, by its restraining process, to prevent the sale of the property under the executions, the remedy being adequate at law.

The case, as made by the pleadings and proofs at the final hearing, was that Lewis, with his wife and servants, was occupying the house and lot, in the suburbs of Port Gibson, estimated to be worth from twelve to twenty hundred dollars.

The argument made in behalf of the judgment creditors is, that at the date of the rendition of the judgments, and for some time after, there were liens upon the propertjq because Lewis was not, within the meaning of the statute, a householder and head of a *367 family, and his subsequent marriage could not have the effect of divesting the liens.

Two things are necessary in order to consummate the right to the homestead. First, occupancy as a place of residence; second, by the head of a family and householder. If the debtor fulfills-these conditions, then the premises, to the extent of quantity and value named in the statute, is exempt from “ seizure ” and “sale.” The law attaches to the ownership of the debtor that immunity. The privilege is both against seizure and sale. Although, therefore, the property might have been liable to levy and sale at the date of rendition of judgment, yet, if before either a levy or sale, the property is impressed 'with the rights of a •homestead, the creditor can proceed no further. The very point was adjudged in Trotter v. Dobbs and wife, 38 Miss., 198 . Dobbs had occupied the land for twelve months before the levy and sale; but on the morning of the day of sale, and a few hours in advance of it, he married and took his wife home. It was held, that the moment he had married he became the head of a family, and, being an occupant, the land became exempt for his benefit, and the support of his family. The doctrine is distinctly announcedjthat, if the debtor occupies as housekeeper and head of a family before the sale, however short the time, he is entitled tethe privilege conferred by the statute.

Lewis has completely fulfilled these requisites, and the privilege of exemption has been impressed upon the land as a homestead. Phipps v. Lessley, 49 Miss., 798 .

"We have not met with a case disputing or denying to the chancery court the power to intervene and prevent the sale of real estate, on legal process ; on the allegation that such a proceeding would culminate in casting a cloud upon the title of the complainant. Numerous eases have been decided in this court, without challenging the jurisdiction, one at this term of Mary A. Shaw v. Valencia Millsaps, et al., (post, 380.)

The levy upon the property is one link in the chain of acts, to *368 bring about such a result. It is the assertion oí a claim, upon the property by the judgment creditor, which would, embarrass the complainant’s title.

In Dows v. City of Chicago, 11 Wallace, 110, the court in considering the various circumstances, in which the enforcement of taxes may be restrained by injunction, mentions the proposed “ sale of real estate, which would throw a cloud upon the complainant’s title, before the aid of a court of equity can be invoked.” It rests upon the principle, that if the tax be illegal or improper, the law could afford no adequate redress; but the chancery court will intervene in the first instance in the protection of the complainant’s title. The principle is recognized in McDonald v. Murphree, 45 Miss. 711 .

If the real estate is not subject to sale under legal process, no title would pass to the purchaser. Nevertheless, there would be hanging over the complainant’s title, the sheriff’s deed, the judgment and levy, which in their united effect would constitute a cloud, that might, after the lapse of time, seriously jeopardize the complainant’s right. It would not be denied that after the sale the complainant might bring his bill to set aside the sheriff's deed. Within the liberal and beneficent range of equitable power — if the remedy at law would not be full and complete practically — then the chancery relief may be interposed.

The test of the right to equitable interposition is not merely that there is a remedy at law; “but it must be plain and adequate, as practical and efficient to the ends of justice, and its prompt administration as the remedy in equity. Boyce’s Ex’rs v. Grundy, 3 Peters, 210 ; Watson v. Sutherland, 5 Wallace, 78. In this last case, Watson & Co. caused writs of fieri facias issued on judgments recovered against Wroth & Fullerton, to be levied on the entire stock of a retail dry goods store, in the possession of Sutherland, who claimed to be exclusive owner. He charged if the sale were made, the injury would be irreparable, and could not be compensated in damages, because he was sole *369 ■owner, had bought the goods for the season’s business, which were not all paid for; that i f his store was closed, a profitable trade would be broken up, and he would become insolvent, etc., •etc. On these allegations, it was held a proper case for injunction.

What damages could a court of law award against a sheriff and the judgment creditor who prompted his act, for the levy upon and sale of land ? The sheriff does not break the close ; he does not intrude upon the occupancy; his deed is ineffectual to pass the title. It can hardly be affirmed that more than nominal damages have been sustained. Yet it might be true, that the existence of his deed would- impair seriously the sale value of the property, and might in after years, when evidences have faded, or grown dim, put in jeopardy the complainant’s title. Many cases are to be found in our books, of bills brought by judgment creditors to set aside fraudulent conveyances of the debtor, in order that a disincumbered title may be offered to purchasers, and thereby enhance the value of the property.

It would be admitted, if a sale were made under these executions, that Lewis, could maintain a bill to vacate the sheriff’s deed, as a cloud upon his title. It is giving a liberal and beneficial ¡application of the principle, to interpóse in advance of the •sale, and disperse the gathering cloud before it has settled upon the complainant’s title. To that extent, in administering the preventive justice of a court of equity, has the doctrine been long acted upon in this state. Nor is it peculiar, or special in our jurisprudence. In a very recent case, Grerry v. Stimson, 60 Me., 189, the court said, “the same reason which justifies the court to compel the. cancellation of a deed, or the release of a supposed right under it, will authorize the prevention of such fictitious and fraudulent titles coming into existence.

It is better to prevent the creation of a fictitious orfraudulent title, than to compel its cancellation or release after it had been created.” In that case the administrator was about to make a sale *370 of intestate's real estate, the effect of which would have been to embarrass the complainant’s right, and was restrained by injunction.

The very question made in this case arose in Pettit v. Shepherd, 5 Paige Ch. Rep., 501 . The object of the bill was to enjoin the sheriff’s sale. The objection to the jurisdiction was urged that the complainant could not be injured, since the invalidity of the title conveyed by the sheriff’s deed could be shown at law. But the chancellor held, that the power to cancel deeds was well established, and if the court can clear off such a cloud, “it would follow as a necessary consequence that it may interpose its aid to prevent such a shade from being cast upon the title, when the defendant evinces a fixed determination to proceed with the sale.”

There is no error in the decree, wherefore it is affirmed.