52 Miss. 181 | Miss. | 1876
delivered the opinion of the court.
Willie Lyons in August, 1873, conveyed to Shackleford and Harvey the premises upon which he resided with his family, in the town of Canton, to secure a large indebtedness to Messrs. J. N. & H. M. Payne. The property was a lot 504 feet by 900' feet, upon which was a large and valuable dwelling-house, with out-buildings to correspond, worth $10,000. The note, secured as above stated, being past due, the complainants, as owners of’ the debt, exhibited this bill to settle and define their rights as creditors in respect of the property, and also those of Lyons in respect to his claim to the homestead exemption. The-complainants do not contravene the right of Lyons to the-
Under the legislation in this state, prior to the statute of 1867, the homestead exemption was a privilege of the debtor to be enjoyed and continued on the terms of occupancy as a residence. When that use of it was abandoned a judgment creditor could at once levy upon it. Whitworth v. Lyons, 39 Miss.
The act of 1867 allowed the debtor to sell the property for the purpose of investment in another homestead, and gave immunity to the purchase money for one year, as the property itself was protected against creditors. Until the passage of the act of 1873, 18th April (pamphlet acts 1873, pp. 78, 79), the administration and dominion over the homestead belonged exclusively to the head of the family. The wife had no vested interest which would be protected by a court of equity. Thoms v. Thoms, 45 Miss., 272. The wife and children were often sufferers from the prodigality and imprudence of the husband and father. The single purpose of this statute was to deprive the husband of the power to dispose of the homestead without the consent and concurrence of the wife. The words of § 1 are, “that it shall not be lawful for a married man to sell or otherwise dispose of his homestead without the consent of his wife, and no deed of conveyance from the husband for the homestead shall be valid unless the wife shall join in such conveyance.” It is in the power of the wife to retain the homestead by refusing to join in the deed of her husband. That Mrs. Lyons did in this case. It is the “homestead” that cannot bo sold or disposed of without the wife’s consent. Referring to the Code of 1871, § 2135, we find a very clear definition or description of what it is, viz.: “the land and buildings owned and occupied as a residence by the debtor, provided the quantity shall not exceed eighty acres, nor the value, inclusive of improvements, the sum of two thousand dollars.” The exemption extends to a residence in a city or town,
It was eminently proper that the complainants should, in advance of a sale by the trustees, have brought this bill, so that they might realize out of the premises so much as was bound
Decree sustaining the demurrer reversed, and judgment here overruling the demurrer, and cause remanded with leave to defendants to answer in fifty days from this date.