77 Miss. 131 | Miss. | 1899
delivered the opinion, of the court.
The bill for partition filed by appellees alleges these facts: W. T. P. Claughton died intestate in August, 1898, leaving a widow, Mrs. A. Gr. Claughton. and six children by a former marriage. At the dale of the death of the intestate, the lands of which jiartition is sought were occupied by him as his homestead. The widow, in the month of October following her husband’s death, conveyed by deed to A. M. Middleton, one of the respondents, all of her right, title, and interest in the lands, and the widow thereupon removed from the premises and ceased to own or occupy the same. A. M. Middleton, who is the husband of a daughter of W. T. P. Claughton, deceased, which daughter is the other defendant herein, and his wife, are the owners of an undivided two-sevenths interest in the lands; and the defendants have collected the cotton stipulated to be paid as rents for a portion of the lands, under a contract of lease for the year 1898. made by W. T. P. Claugh-ton, the intestate, in his lifetime. The prayer of the bill is for a sale for partition, the allegation being that the land is insusceptible of partition in kind, and for an accounting for the proceeds of the rent cotton.
The respondents demurred to the bill, and, for principal cause, assign that partition could not be had against the widow herself, and that the respondent, A. M.. Middleton, by his conveyance from the widow acquired all her rights, and, therefore, that partition cannot be had against him. The demurrer also raised the question of the liability of resx>ondents to account for the rent collected by them.
The demurrer was by the court below overruled, and respondents appeal from the court’s action in the matter.
Under § 1551, code of 1892, “the property, real and personal, exempted by law from sale under execution or attachment, shall, on the death of the husband or wife owning it, descend to the survivor of them, and the children of decedent, as tenants in common.” Under § 1553, same code, “where a
Clearly the lands involved in this suit descended to the widow and children of the deceased, W. T. P. Olaughton, as tenants in •common, and with all the rights in them as tenants in common, with this limitation upon the right to partition, viz., the estate descended “shall not be subject to partition or sale for partition during her widowhood, so long as it is occupied or used by the widow, unless she consents.” The estate in common may be partitioned without the consent of the widow in two events; first, if she remarry, and, second, if during her widowhood she shall cease to occupy or use the descended estate.
The demurrer admits that the widow has parted with her interest in the lands, and has removed from them. She confessedly does not ocenpv them. Does she use them? She certainly does not use the lauds, for she has by deed conveyed all her interest in them, has removed from them, and has no right to occupy or use them.
It is argued by counsel for appellants that the widow, though tenant in common of the fee with the children of the decedent, has the right to the exclusive use of the entire estate during her widowhood, and that she might lease the entire premises during the whole terni of her widowhood. This position may be sound, or it may not be. We are not called upon to determine it, for it is not before us. The widow in the case before us is not claiming the exclusive use of the entire property, nor is she claiming to have leased the property for any term. She has sold and conveyed her interest in the lands, and no longer occupies or uses them. Doubtless her vendee occupies and uses the premises conveyed to him, and doubtless the widow uses the proceeds of the sale of the lands, but that is not a use of the lands themselves.
The protection of the statute was designed for the widow, but not for her vendee.
The decree of the court delow is affirmed, with leave to respondents to answer within thirty days after mandate filed in that court.
