Colbert v. Henley

64 Miss. 374 | Miss. | 1886

Cooper, C. J,,

delivered the opinion of the court.

The appellant is the owner of a lot in the town of Biloxi, upon which are situated two houses. In one of these she usually resides with her family, but at other times, when summer visitors resort to the town, she rents out her residence and sojourns temporarily with her family in the other. There is, or was until a few days after the levy of the execution of plaintiff upon a part of the lot, a fence dividing the lot into two. Appellant is the head of a household, and the lot is claimed by her as her homestead exemption. The appellee, having recovered a judgment against her, caused an execution issuing thereunder to be levied on so much of the premises as was cut off by the fence from the lot on which the residence proper is located, and thereupon the appellant exhibited this bill to enjoin the sale upon the ground that it would cast a cloud upon her title. On final hearing the bill was dismissed, and from this decree the complainant appeals.

Much proof was taken in the case to show that the entire lot exceeded in value tbe sum of two thousand dollars, but all such testimony was wholly irrelevant and cannot be considered. By her bill the complainant expressly charges that the value of the entire property does not exceed the sum of seventeen hundred dollars, and there is not one word in the answer specifically denying this averment. There is a general traverse of all the állegations of the bill, but by § 1892 of the code it is declared that “ facts averred in the bill, and not denied by the answer otherwise than by the general traverse, may be taken at the hearing as admitted.”

In view of the fact that the parties have directed their attention to this branch of the case, and that no objection was taken in -the court below to the introduction of this evidence, we should be disinclined to hold the appellee bound by the answer in its present form, but would remand the cause that an amendment might be made were it not for the further fact that under the levy as made it would be impossible to afford relief, even if the answer were amended and converted into a cross-bill. The appellee has not caused his execution to be levied upon the whole of the land, because its value exceeds the value of the exemption allowed by law. His effort is to subject a certain portion of the lot to his judgment, irrespective of the value of the whole, because it was separated by a fence from the remainder, and, as he contends, was thereby dissevered from the homestead. It is manifest that in this condition of affairs he must subject the property upon this ground or fail of all relief.

The case in the only phase in which it can be considered is fully covered by the recent case of Baldwin v. Tillery, 62 Miss. 378.

The decree is reversed, the injunction reinstated, and a decree directed to he entered here making it'perpetual.