Jackson v. Coleman

1. Homestead. Abandonment. Liberal construction of laws. Homestead laws should he liberally construed for the exemptionist and an abandonment will not exist unless it is clear from the proof that the exemptionist has removed from the homestead' with the intention of not returning. 2. Homestead. Abandonment. Statutes. A widower, who, being unable to work on account of rheumatism,, left his farm and leased it for five years in order to support his children from the rent and who tried to regain possession of the farm after he was better, did not abandon his homestead within the meaning of the Code 1906, section 2157, in relation t0‘ exemptions. 3. Homestead. Divorce, Alimony. Execution. A homestead where there are dependent children is not ordinarily subject to an execution for alimony, such a case not being among those named in Code 1906, section 2156, wherein the homestead is not exempt, and the court will not add to such exceptions. 4. Homestead. Divorce. Alimony. Execution. Where there are dependent children, the homstead is not subject to a demand for alimony unless the pleadings and decree in the divorce proceedings describe and show the necessity for a lien on the homestead.

Appeal from the chancery court of Coahoma county. Hon. Ive May, Chancellor. Suit by Lindsey Jackson against Emmett Coleman and others. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. The appellees base their case on the following propositions : 1. That the trial court has rendered a decision on a question of fact, and that such a decision will not be reversed; 2. That upon the divorce of Lindsey Jackson and Alice Jackson, Lindsey had no further rights of a homestead exemption; 3. That the amount paid for the land was entirely sufficient in law; 4. That the decree of the chancellor in the case, of Alice Jackson v. Lindsey Jackson, in which a divorce was granted to. the former, and alimony allowed her, was, in effect, a lien upon the land, sold under execution, belonging to Lindsey Jackson, even though said land may have been, at the time of said sale, the homestead of the appellant. Taking up the first proposition, we find that the rule of law, in this state as found in section 172, E. C. L. Yol. 2, under the head “appeal and error” is as follows: “Under the present practice in equity, while the evidence is heard by the court viva voce, still the findings of the trial court are open for review, and while it is the general practice to defer in large measure to its decision on a question of fact, on account of its superior advantage in weighing the evidence, the reviewing court retains the right, unless otherwise provided by statute to weigh the evidence and draw its own conclusion.” 2 R. C. L., page 204, section 172, and numerous authorities cited in footnote 17; Balter v. Cochran, 2 Miss. 26. We insist, that in the instant case, the decree is manifestly wrong, that the decision is so clearly against the great weight and preponderance of the evidence that this court in its great wisdom, and love of justice cannot and will not permit the decision, handed down by the lower court to stand. Maxwell v. HarMeroad et al., 77 Miss. 456; Garland, Executor, v. Roivan., Q. S. & M. 630; 2 R. C. L., section 187, and 188, pp. 225-226; Ellison v. Ga. R. B. Co., 87 Ga. 691; 4 C. J., pp. 1099, 3078. As to the proposition that Jackson did not intend to speedily re-occupy it, the only evidence in the record,, which bears out appellee’s theory, is a statement which counsel for appellees, elicited for Jackson, after a very long, tedious and arduous examination, after the old man had been worried to such an extent that he hardly knew what he was doing or saying. He testified time and time again as to the efforts which he had made to lease the land for one, two, or three years, and as to the fact that finally he did lease the land for five years, when he found that he could not rent it for one, two, or three years. As a matter of the second proposition, we submit that counsel does not cite one single authority, which would substantiate his idea. The law is settled, and we find it stated, in 13 R. C. L., page 557, coming under the head of Homestead, as fol'ows: “Primarily, the husband, and not the wife, is the head of the family, and any man who has a wife is considered the head of a family within the meaning of homestead or exemption statutes, although he has no children. And it makes no difference that his wife may have deserted him and may be- residing in an•other state, and that he may he living in improper relations with another woman.” As to the proposition, that the decree for alimony, in the divorce proceeding, after being enrolled, became a lien on the homestead of old man Lindsey Jackson, we find that the law is otherwise. 1 E. C. L. section 91, page 945, 21 Cyc. 521. We will take up briefly one or two of thd cases cited by counsel for appellees, on this proposition. The first is that of Mosley v. Larson, 86 Miss. 288, which explains the law in Mississippi. Adverse counsel has favored us with a long quotation from Justice Cox’s opinion. We will quote from his brief only a part of this quotation, and give you our idea as to what is meant by it. “We further hold that upon the facts averred, appelT lee is entitled to suit money and to alimony pendente lite ■and permanent and that the sums allowed for these pur. poses may be made a lien upon the homestead superior to any claim of appellants for reimbursement, etc.” We know that this is the law; that the court, having Jurisdiction of the parties may decree the alimony to be a specific lien upon the land superior to the right of the homestead exemption. Counsel cites also the case of Barber v. Barber, 21 How. (U. S.) 582. We realize that this is the law and have no fault to find with this statement of it. At least two-thirds of the ■cases cited by counsel for appellees, on this proposition, are directly and unequivocally in favor of the appellant, and we could find no stronger authorities no matter where we might look in our favor. In conclusion we wish to call the court’s attention to the fact that in reality there is practically no question of fact decided by the lower court. The sole real question which counsel for appellees claim to be a question of fact is that of the abandonment or non-abandonment of the homestead by Jackson which is a question of law to be now decided by this court in view of the facts as shown by this evidence. - We submit that adverse counsel have failed utterly to sustain the several propositions advanced by them in their brief, and that under the facts as shown by the evidence and the law applicable., thereto the decision of the chancellor should be reversed. Many of the eases cited by counsel on the question turned not only on the question of abandonment, but also upon various statutes in effect in the states where rendered. Alabama, since 1877, has an act which permits the leasing of a homestead without destroying the homestead right in the land, but prior to the passage of this act the supreme court of Alabama was called to pass on the question of whether or not the leasing of a homestead amounted as matter of law to an abandonment of it. And until the passage of the act mentioned, it was well settled in that state that the leasing for a term of years was considered as a matter of law and abandonment of the homestead. 59 Alabama 566; 41 Alabama 302; 63 Alabama 257. When one has a homestead, and leaves it for the purpose of regaining his health, the law requires him to return to it as soon- as his health is regained. The expression of a wish to return to the homestead is not enough to entitle one to retain a homestead when absent from it. The record here doesn’t disclose that Lindsay Jackson was absent from the land by reason of some casualty or necessity, not for a period of five years, and whatever his intentions were as to returning, are quite immaterial. As the court in Moore v. Bradford, 70 Miss. 70, said: “Ceasing to reside on a homestead is rather matter of fact than an intent. ’ ’ Upon the facts and the law, we respectfully submit the bill must fail. The lien of the judgment of Alice Jackson was effectual against the real property of the complainant here. Lindsey Jackson had heen possessed of real-estate other than that claimed as a homestead, and if there had been no statute creating a lien by the enrollment of the judgment, there is a possibility that the decree would have created only a personal liability, and might not have operated as a lien, although the weight of authority is to the contrary.- Conrad v. Everich, 50 Ohio, State 476. Nor, can it make any difference that the judgment was for the payment of alimony in installment in the future. In Story v. Story, 41 N. j. Eq. 370, the court held that a decree for alimony payable in installments creates a lien upon the lands of the husband as the alimony falls due. This case is reported also in 2 Atl. Rep., 7 Atl. 525. And it has been held that although an application for alimony doe.s not specifically describe any property of the husband, the judgment of decree granting the application is the lien of an ordinary general judgment for the alimony so awarded. Coulter v. Lumpkin, 94 Gra. 225, S. E. Rep. 461. We respectfully submit that the land was subject to the execution by the wife for alimony, and this view is supported by several well reasoned opinions, quoted hereinafter. Boyle v. Shuman, 59 Ala. 566; Stown v. Lillie, 63 Ala. 257; T. v. T., 56 Miss. 36; Bennett v. Dempsey, 94 Miss. 406; Majors v. Majors, 58 Miss. 806; Land v. Boykin, 25 So. 172; Porter v. Harrison, 27 So. 302; Hollins v. Crooper, 40 So. 378; Conrad v. Everich, 40 Am. St. Rep. 584; Mosley v. Larson, 86 Miss. 288; Thompson v. Tillotson, 56 Miss. 36; Best v. Zutavern, 53 Neb. 604, 74 N. W. 64; Mahoney v. Mahoney, 59 Minn. 347, 61 N. W. 334; Daniels v. Morris, 54 Iowa, 369, 6 N. W. 532, 41 Kan. 342; Moore v. Bradford, 70 Miss. 70, 11 So. 639; Nunn v. Paige, 135 Am. State Reports-; Tyler v. Tyler, 99 Ky. 31, 34 S. W. 898; Menzie v. Anderson, 65 Ind. 239; Conrad v. Everich, 50 Ohio St. 476, 35 N. E. 58; Coffman v. Finny, 65 Ohio St. 61, 61 N. E. 155; See •also Hamlin v. Bevins, 7 Ohio 161; Stoy v. Stoy, 41 N. L. Eq. 370, 2 Atl. 638,, 7 Atl. 625. And it has been held although an application for alimony does not speeifially describe any property of the iusband, the judgment or decree granting the application has the lien of an ordinary general judgment for money. 'Coulter v. Lumpkin, 94 Ga. 225, 21 S. E. 4617; Bland v. Putman, 32 So. 616 (Ala); Porter v. Harrison, 24 So. 302; Birch v. Atchison, 82 Ky. 585; Mounger v. Gandy, ■69 So. 817; Buffalo Savings Bank v. Hunt, 118 N. Y. S. 1021; Davis v. Andretv, 30 Yt. 679; Smith v. Bunn, 75 So. •559; King v. Miller, 10 Wash. 274, 38 Pac. 1020; Gaston v. Gaston, 114 Calif. 542, 55 Am. St. Eep. 86, 102 A. S. E. 704; Wetmore v. Wetmore, 149 N. Y. 520; Wightman v. Wightman, 45 111. 174; Benson v. Aitken, 17 Cal. 163; 31 Wash. 397, 62 L. E. A. 974, and notes; Bishop, Mars ■& Div. (6 Ed.), sec. 430; Fisher v. Fisher, 32 Iowa, 20; Barrett v. Barrett, 41 N. J. Eq. 139, 3 Atl. 689; Byer v. Byer, 67 How. Pr., 369. In the case of Ex rel Brown, above cited, (62 L. T. A.) at page 981, says: “While the appellant, under the laws of this state may, after the decree of divorce, legally remarry, the fact of a subsequent remarriage cannot relieve him of the obligation fixed by the decree.” But before his second marriage, Alice Jackson had placed her judgment of record in the office of the circuit ■clerk on the judgment roll, where it was notice to the world, and a valid lien upon whatever lands or property Lindsey Jackson might own in the country. Trowbridge v. Spinning (Y^ash.), 83 A. S. E. 817; Sapp v. Wightman, 103 111. 150; Frakes v. Brown, 2 Blackf. 295; Tyler v. Tyler, 99 Ky. 31; Dufrene v. Johnson, 60 Neb. 18; Arrington, 92 Am. St. E. 769; Conrad v. Everich (Ohio), 40 Am. 'St. E. 684; Secs. 819-822, Code 1906. Scire facias was not necessary to revive the judgment because no execution was issued thereon within a year and day after its rendition,.and execution was lawfully issued without such revival. Sec. 824, Code 1906. The decree had the force, operation and effect of judgment at law in the circuit court. Sec. 644 Code 1906. The decree having been recorded in the judgment roll in the proper office, the circuit clerk properly issued execution thereon. Sec. 3979, Code 1906; Buffalo Bav. Bank v. Hunt, et al., 118 N. Y. S. 1021. Further discussion is unnecessary. The report of the referee should be confirmed with costs of two motions, for fees and other necessary and proper disbursements cf the claimant, Anna K. Mattesori. We respectfully submit that the decree of. the chancellor should be affirmed.