69 Miss. 352 | Miss. | 1891
delivered the opinion of the court.
It has several times been said by this court, in general terms, that a tenant in common may maintain his claim to his homestead exemption in the common estate. The requirements of the litigation presented in this cause demand of us a fuller and more particular annunciation of the law governing cases of claims of homestead exemptions by one of the tenants in common in the undivided property.
1. The execution creditor has no concern with the title of the tenant in common whose estate he is seeking to subject to his demand. If the debtor has good title to an undivided
2. The consent of the co-tenants to the occupancy of the homestead claimed, is not essential to the successful maintenance of the homestead exemption in a contest with creditors of the homestead exemptionist. The debtor is found in the occupancy of the common property, and asserting claim to his homestead exemption in a part of it; if he has or has not the consent of his co-tenants, the creditor cannot complain. The want of title, or the want of consent by co-tenants to occupancy, in no way possible can affect the rights of the creditor seeking to subject the debtor’s property to his demand. The remark in McGrath v. Sinclair, 55 Miss., 89, that, “ Perhaps the better rule is . . . that the homestead may be acquired in the common property, with the consent of the co-tenant, which will be good against all other persons,” contains an intimation which is unsound; and this unsound intimation is perfectly refuted in the reasoning of the court which immediately follows it. Said the court in that case: “ It is the occupancy as a residence which the statute had in view, and intended to protect, rather than the title by which he held. The substance thereof is, that the creditors shall' not break up the home and residence by a sale of such title as the debtor had. If the debtor refers his possession to a tenancy in common with another, and enjoys the occupancy in that right, it is no reason that he should lose'his home because, as against his co-tenant, he has not an exclusive right, and could he compelled to make partition. These are matters between himself and his co-tenant.”
The tenant in common who claims his homestead exemption in the estate in common, has no floating claim to exemption in the entire estate, as must be seen from what has been already said by us. He is to be protected in his occupancy of the homestead of proper quantity and value, but no further. Whatever interest he may have in the remainder of the common property, is salable in satisfaction of demands of creditors in p?’oper cases. What this undivided interest in the remainder of the common estate may be, or may prove to be worth, is a matter of no concern in the examination of the subject now being considered. And so, what the real interest of the debtor in the homestead exemption allowed him may now be worth, or whether it may hereafter prove valueless, comparatively, on partition with the co-tenants, are questions not involved. Whatever estate the debtor has in the common property outside of that part claimed as a homestead, may be seized and sold; and, whatever estate the co-tenants have in the part claimed as a homestead by the debtor, their tenant in common, remains unaffected, as between him and them, by the recognition and allowance of his homestead in the common property, in the contest between him and his execution creditor.
The decree of the court below,must be reversed, because by it the appellee had greater relief afforded than he was entitled to ask or receive. The injunction should be made perpetual, in so far as a homestead, not excessive in quantity or value, may be claimed, and it should be dissolved as to the
