Moore v. Bradford

70 Miss. 70 | Miss. | 1892

Campbell, C. J.,

delivered the opinion of the court.

The first instruction for the defendant is not accurate, as an expression of the law on the subject, because it omits the statutory requirement of the purpose of speedily re-occupying the homestead, and for the further reason that it makes the intent of the party not to abandon the homestead the test of its liability to be taken for debt, without regard to the circumstance of his having ceased to reside on it.

The second instruction for the defendant is subject to the same criticism as to the intent of the person who ceases to reside on his homestead, as to removal and purpose to reoccupy the homestead.

The intent of the party as to speedy re-occupancy of a homestead on which he has ceased to reside because of some casualty or necessity, is an important factor in determining whether temporary removal renders the homestead liable to creditors; but the intent of the party can have no influence on the question of the existence of such casualty or necessity as justifies temporary removal without exposing the homestead to creditors. If one ceases to reside on his homestead, without some casualty or necessity to cause his removal, it becomes liable to his debts. The question in such case is; Wis the ceasing to reside on the homestead caused by some casualty or necessity such as the law contemplates ? If this question is auswered in the affirmative, the next question is; Wees the removal temporary, and •with the purpose of speedily re-occupying the homestead as soon ces the cause of his absence can be removed? In determining the first question, the intent of the party as to removal or re-occupying is not a matter for consideration. In the other, it is an important subject of inquiry.

Bradford ceased to reside on his homestead. The evidence does not disclose any such casualty or necessity for this as the law contemplates. Thompson v. Tillotson, 56 Miss., 36. Therefore, the intent or purpose he had, as to re-occupying, can have no influence. The non-existence of the conditions making it possible for him to cease to reside on his homestead, without rendering it liable for debts, made it immaterial what his purpose was. The fact of ceasing to reside on „tlie homestead, in the absence of casualty or necessity, precluded any further inquiry. Ceasing to reside on a homestead is rather matter of fact than of intent.

Reversed and remanded.