Minor v. Interstate Gravel Co., 94 So. 3

94 So. 3 | Miss. | 1922

Holden, J.,

delivered the opinion of the court.

This is a suit in chancery by the appellee, Interstate Gravel Company, against the appellant Brown S. Minor and others, seeking to remove cloud from title, quieting and confirming its title to certain lands, and also seeking an injunction restraining appellants from going upon the land or interfering with its laborers and employees thereon. From a decree granting the relief prayed for in the bill, this appeal is prosecuted.

The facts of the case are as follows: The appellant Brown S. Minor and his mother, Mrs. M. L. Minor, were the owners in common of eighty acres of land. In April, 1919, they executed a contract of lease of the land to the appellee. This contract also granted an option to the appellee to purchase said land within two years for the sum of three thous- and dollars. Before the expiration of the option, the appellee, Interstate Gravel Company, paid to appellant Brown S. Minor and Mrs. M. L. Minor the agreed price of three thousand dollars, and received a warranty deed to the land February 17, 1920.

Betw.een the date of the execution of the contract of lease and option to buy, in April, 1919, and the date of the execution of the deed of conveyance in February, 1920, the appellant Brown S. Minor married and moved upon the land and occupied it as a homestead. That is to say, he married in October, 1919, and moved upon the land with his wife, and while occupying the land as a homestead he executed the warranty deed to appellee, together with his mother, Mrs. M. L. Minor, but the deed made by him was not signed by his wife. Thus it appears the deed executed by bim conveying his undivided one-half interest in the eighty acres of land was not signed by his wife, who was occupying the land with him as a homestead. And it is the contention of appellant that the deed to the bpmestead is void because it was not signed by the wife.

The appellant also contends that the contract of lease and option is invalid and unenforceable because it is unilateral, indefinite in description, and otherwise void. But we see no merit in the latter contentions because it appears the contract of lease with the option to purchase was based upon sufficient consideration, and, considering the whole instrument together, we think its terms are sufficiently definite and cei’tain for validity and enforcement.

At the time appellant Brown S. Minor executed the contract of lease and option to buy, he was a single man and competent to execute the contract. This contract was duly recorded on the records of the county, and when he executed the warranty deed in February, 1920, his part of the purchase money was paid to him in cash, but he and Ms wife now claim that the deed was void because the land was occupied as a homestead when he signed it, and his wife did not join in the conveyance. So the determining question in the case is whether or not the deed executed by him at the time when the land was occupied as a homestead was valid without the signature of his wife.

It is urged by counsel for the appellant that when appellant married and occupied the land the homestead exemption arose and defeated the rights of the appellee, gravel company, under the contract of option to purchase; that the deed is absolutely void under sections 2146 and 2159, Code of 1906 (sections 1821 and 1834, Hemingway’s Code), because the land was a homestead and the conveyance was not signed by the wife, and therefore the appellee, gravel company, has no title or right of possession to the land in question.

The appellant cites many decisions of this court to support his contention, but we find the cases referred to deal only with homestead exemptions against seizure or sale under execution or attachment under said section 2146, Code of 1906 (section 1821, Hemingway’s Code). But the case before us is not one where the exemption is claimed as against an execution or attachment, but the right claimed here against the homestead exemption rests upon contract. Therefore the exemption under the last-named statute is not involved in this case.

The deed to the homestead, unsigned by the wife, would be void under the said section 2159, unless the contract of option, duly executed and recorded prior to the marriage and occupancy of the land as a homestead, is superior to the after-acquired homestead exemption.

We think the position taken by appellant is untenable, for the reason the option to purchase, given by appellant Minor at the time when he was single and competent to conTey the land, was a covenant running with the land, which was valid and enforceable before or after it became a homestead.

He contracted to sell the land while it was not a homestead, and the covenant to sell ran with the land. Therefore the subsequent homestead right acquired by the wife was subject to the covenant to sell which existed before the land became a homestead; consequently the effect of the deed signed alone by appellant Minor was to convey the land as of the date of the contract of option to purchase, which was in April, 1919, when the land was not a homestead. Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, L. R. A. 1916E, 1227; Yost v. Devault, 3 Iowa, 345, 66 Am. Dec. 92; Kurz v. Brusch, 13 Iowa, 375, 81 Am. Dec., 435; Davis v. Kelley, 14 Iowa, 527; Smith v. Bangham, 156 Cal. 359, 104 Pac. 689, 28 L. R. A. (N. S.) 522. It therefore follows that the deed to the land s executed by the appellant Brown S. Minor to the gravel company is valid, and the veto power of the wife in this case is unavailing.

We find no error in the decree of the chancellor enjoining appellants and in quieting and confirming the title to the land in the appellee, Interstate Gravel Company.

The decree of the lower court is affirmed.

Affirmed.