50 Miss. 717 | Miss. | 1874
delivered the opinion of the court:
It is manifest that the appellants, nor either of them had a homestead exemption, on the “No Mistake plantation,” for the proof is uniform and clear that they never had a domicil on that property. In Whitworth v. Lyons, 39 Miss., 467, it was ruled under art. 281, code of 1857, p. 529, that the debtor held the exempt homestead upon the condition of occupancy, and if abandoned, it was subject immediately to seizure and sale by a judgment creditor. The residence of the family was upon the Lake Dick estate, and to that property the exemption attached, if any existed.
Mrs. Partee owned as her separate property, three plantations, which were sold under the judgment in favor of the appellee. She resided (as the proof shows) with her husband and children upon the Lake Dick property.
The inquiry is reduced to this: Isa married woman owning separate real estate, and residing upon it with her husband and children, entitled as against her judgment creditor to the homestead exemption ? The statute of 1857 describes the person who has the privilege thus: “ citizen of the state, male or female, being a householder and having a family.” The statute of 1865, thus: “The head of every family, being a white person and a house-keeper.” The policy of this legislation is very clearly stated in Mosely v. Anderson, 40 Miss., 54, among other reasons that “families shall not be deprived of shelter and reasonable comforts.” The right is not dependent “ on the merit or demerit of the debtor.” The state is concerned that the citizen shall not be reduced to pauperism, by deprivation of means of
The elements which distinguish the privilege (including by express words of the statute both “male and female”) are the ownership of the land, residence upon it with a family. These are rather the relations of the debtor to the property, than the subordination of the several members of the family, the one to the other. The husband is the head of the family in the sense that the wife and children are subject to his marital and paternal authority. But he has no authority and control over the wife’s property, or the application of it to the support and nurture of the family, unless by her consent. If the land occupied is the domicil of the family, it is her residence, with supreme control, except that she can not mortgage or alien without his approbation. Bank of La. v. Williams and Wife, 46 Miss. Rep., 618.
We are of opinion that Mrs. Partee is entitled to the homestead exemption in the Lake Dick plantation.