John I. Adams & Co. v. Dees

62 Miss. 354 | Miss. | 1884

Campbell, C. J.,

delivered the opinion of the court.

The exemption of a homestead from execution is by statute, and it exists only in accordance with the statute. There is no statute in this State which exempts from execution the money or credits obtained from a sale of the homestead by the voluntary act of the exemptionist. The only way for him to securely enjoy the protection of the exemption law is to keep what it exempts, or, selling it, as he may, to get for it money, which the sheriff cannot have access to, or another homestead or chattels, which are exempt. If by his voluntary act he converts his homestead into something, no matter what, which the law does not exempt, he thereby forfeits the protection which the law gives to his possession and ownership of certain designated things. . The note of Cudabac to Dees for the homestead sold by the latter was not exempt. It was subject to garnishment. It was therefore effects which the creditors of Dees had the right to subject, and the surrender of this note for a conveyance to Mrs. Dees did not vest the title of the former homestead in her free from the demands of his creditors. He had voluntarily withdrawn his homestead from the protection the law gave to him in its enjoyment as such, and had no right to give to- his wife the chose in action which the law made liable to his debts. His idea, even if derived from the advice of counsel, that the note given oú sale of his homestead was not subject to-the demands of creditors, and his purpose to devote the proceeds of the sale of the homestead to the purchase of another, and the belief that a conveyance by Cudabac to Mrs. Dees for the note he had given for his property would vest title in her as against his creditors, and his determination to keep within the protection of the exemption law, did not prevent the legal result of his voluntary exposure of his effects to the pursuit of his creditors.

Decree reversed and cause remanded.