Gulf & Ship Island Railroad v. Singleterry, 78 Miss. 772

78 Miss. 772 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

Suit was brought by William and Maria Singleterry for $200 damages for the act of the defendant company in taking and appropriating as a right of way a strip of land of plaintiffs, one hundred feet wide and one-half mile long across the east half of southwest quarter of section 35, township 5, range 1, east, in Bankin county, and recovery was had for said sum. At common law this is a simple action of trespass guare clausum fregit, and the evidence of the plaintiffs below warranted the judgments obtained. The land trespassed upon is the homestead of the appellees, and the husband had, in consideration of one cent, conveyed to the railroad company a right of way over it. Our statute, however, requires the signature of the wife of the owner to validate a conveyance of the homestead or an incumbrance upon it. A right of way for a railroad company is, from its essential nature, an interest in land, and, to the extent of the land taken, is a direct diminution of the homestead. The statute which inhibits the conveyance of- the entire homestead by the owner, inhibits the conveyance of any part of it; for the whole includes all its parts, otherwise the statute would be rendered ineffective by construction. The legislature has undoubted authority to prescribe what contracts shall convey lands. At common law a title 'to land was passed by livery of seizin without writing; by the statute of frauds a writing is required to pass an interest in any lands; and by § 1983, code 1892, the joint conveyance of the'husband and wife is necessary to pass title to the homestead. Here the conveyance of the husband only was a nullity; it operated nothing. It ran counter to the statute, and the statute, like a tyrant, destroyed it. The statute makes the homestead community property, or clothes it with the incidents of community property, and the signature of the spouse in whom the title is invested without the signature of the other, is inoperative and void. The alleged consent of William Singleterry was not made in conformity with law, and not being so made, it was inoperative and void and constituted no defense to an action by him against the railroad company for its act in entering upon and appropriating bis land to its use as a right of way. His separate conveyance being void, the act of the railroad company was a naked trespass.

That the plaintiff had a good cause of action is settled by abundant authority. 2 Lewis on Eminent Domain (2d ed.), sec. 649; 3 Bl. Com., 209; Canton, etc., R. R. Co. v. French, 68 Miss., 22, s.c. 8 South., 512; Natchez, etc., R. R. Co. v. Currie, 62 Miss., 506; Memphis, etc., R. R. Co. v. Payne, 37 Miss., 700; Copiah County v. Lusk, 77 Miss., 136, s.c. 24 South., 972.

Affirmed.