94 So. 1 | Miss. | 1922
delivered the opinion of the court.
This suit involves the question of whether a judgment debtor may claim a homestead exemption against sale under execution by the judgment creditor, where the debtor does not actually occupy the land, claimed as the homestead, which is levied upon and offered for sale under the execution.
The suit was started by an injunction secured by appellee, Mauldin, against the appellant, sheriff, restraining the sale under execution of certain land claimed by appellee as a homestead upon which the judgment ’ creditor had levied execution to satisfy a judgment against appellee. On the day, to wit, May 2,1921, when the sale was to take place under execution by the sheriff, the injunction, was obtained and the sale stopped, and afterwards, on motion to dissolve, the court decreed that the injunction be made perpetual. Prom which decree the judgment creditor appeals.
“That the Security Bank & Trust Company, on the 18th day of February, 1921, obtained a personal judgment against L. C. Mauldin and one T. B. Stanley, in the circuit court of the Second judicial district of Choctaw county, Ackerman, Miss., in the sum of seven thousand seven hundred eighty-eight dollars and thirteen éents, which judgment was duly enrolled on the 28th day of February, 1921.
That on the 28th day of February, 1921, execution was issued against the said Mauldin, and the property described in the bill of complaint, which property is claimed by complainant to be a homestead, was levied upon on March 22, 1921, and advertised to be sold on May 2,1921. That prior to the 2d day of May,' 1921, neither the said Mauldin nor any of the members of his family ever occupied said premises for homestead purposes, that is, the said Mauldin did not occupy said premises as a residence, nor were said premises dedicated or used as a home for the family, nor was he at any time in actual occupation of said premises as a homestead prior to May 2, 1921.”
It will be observed from the facts that the appellee, Maul-din, and his wife, had not actually occupied the land, which they claimed to be exempt as a homestead prior to the time the injunction was issued and the sale stopped. The only claim made by appellee, Mauldin, is that while they had not lived on the premises nor occupied the same, they had placed part of their furniture in the uncompleted house that was then being erected upon the land; that they intended to move upon the premises and occupy it as a homestead at some future time when the residence was sufficiently constructed for them to live in, but they had not occupied the premises themselves at any time.
The appellee seems to contend that the land levied on was exempt as a homestead because he intended to- occupy it as such, and had put some of their belongings upon the premises before the date of the sale and injunction, and that this amounted to a constructive occupation of the
The exemption statute means that the premises must be owned and actually occupied by residing thereon by the person or persons specified in the statute, before the right to claim the benefit of the exemption exists. We do not think the statute contemplates constructive occupation of the premises as giving the right of the exemption, but it intends to require residence and actual occupation before the exemption will arise and defeat the judgment creditor. Campbell v. Adair, 45 Miss. 170; section 2146, Code of 1906 (Hemingway’s Code, section 1821).
We have considered the case and decided it upon the facts showing the status of the rights of the parties up to the time the sale was stopped by the injunction. We have not considered the status that arose after the sale was stopped or that may arise before the execution sale is finally made. The status of the case at the time the injunction was granted is the test before us at this timé.
The judgment of the lower court is reversed, and judgment entered here for the appellant.
Reversed, and judgment here.
