Partee v. Stewart

Simrall, J.,

delivered the opinion of the court:

It is manifest that the appellants, nor either of them had a homestead exemption, on the “No Mistake plantation,” for the proof is uniform and clear that they never had a domicil on that property. In Whitworth v. Lyons, 39 Miss., 467 , it was ruled under art. 281, code of 1857, p. 529, that the debtor held the exempt homestead upon the condition of occupancy, and if abandoned, it was subject immediately to seizure and sale by a judgment creditor. The residence of the family was upon the Lake Dick estate, and to that property the exemption attached, if any existed.

*720 The claim is resisted upon two grounds by the appellee: First. That the appellants are estopped by the conduct of W. B. Partee, the husband, by causing it to be believed by the bidders at the sheriff’s sale, that the exemption would be laid upon the No Mistake plantation, whereby that property brought a less price. The preponderance of the testimony, is that nothing was done by the husband to propagate that idea, although it may have prevailed. The husband is not the general agent of the wife. Treadwell v. Herndon, 41 Miss., 38 . And cannot, by his acts, defeat the wife’s interests in real estate, unless thereto authorized and sanctioned by her. Sec. 38, Code 1857, p. 314. When several separate tracts of land are owned by the debtor, the privilege of making a selection of the homestead does not exist; the law confines it to the parcel upon which the family reside, and have their domicil. Occupancy and domicil confer the privilege, which may be lost, by a removal, and acquisition of domicil elsewhere. Thoms v. Thoms, 45 Miss., 275 .

Mrs. Partee owned as her separate property, three plantations, which were sold under the judgment in favor of the appellee. She resided (as the proof shows) with her husband and children upon the Lake Dick property.

The inquiry is reduced to this: Isa married woman owning separate real estate, and residing upon it with her husband and children, entitled as against her judgment creditor to the homestead exemption ? The statute of 1857 describes the person who has the privilege thus: “ citizen of the state, male or female, being a householder and having a family.” The statute of 1865, thus: “The head of every family, being a white person and a house-keeper.” The policy of this legislation is very clearly stated in Mosely v. Anderson, 40 Miss., 54 , among other reasons that “families shall not be deprived of shelter and reasonable comforts.” The right is not dependent “ on the merit or demerit of the debtor.” The state is concerned that the citizen shall not be reduced to pauperism, by deprivation of means of *721 support. The exemption applies, in the words of the act of 1857, to the “ land and buildings owned and occupied as a residence by such debtor.” In this case Mrs. Partee was the debtor; she was the owner of the “land and buildings,” and with the family she occupied them as a residence. She was the exclusive owner; the marital rights of the husband did not extend to the income, rents and profits ; she could lease without the concurrence of the husband; and could put the lessee in possession of the premises, including the “buildings.” Having this large control over the property, she was certainly within the reason of the statute, and we think within its words. The debtor must both own and reside upon the land; must be a householder, and have a family. Under that policy, which secures to the wife, all property owned by her at the time of the marriage, and all subsequent acquisitions, there must be a multitude of instances, where all the means, for the support of the family, are exclusively hers; and the argument is just as strong to protect her homestead, from seizure and sale, as where the property belongs to the husband, and he is the debtor.

The elements which distinguish the privilege (including by express words of the statute both “male and female”) are the ownership of the land, residence upon it with a family. These are rather the relations of the debtor to the property, than the subordination of the several members of the family, the one to the other. The husband is the head of the family in the sense that the wife and children are subject to his marital and paternal authority. But he has no authority and control over the wife’s property, or the application of it to the support and nurture of the family, unless by her consent. If the land occupied is the domicil of the family, it is her residence, with supreme control, except that she can not mortgage or alien without his approbation. Bank of La. v. Williams and Wife, 46 Miss. Rep., 618 .

We are of opinion that Mrs. Partee is entitled to the homestead exemption in the Lake Dick plantation.

*722 Decree reversed, and cause remanded for further proceedings in accordance with this opinion.