71 So. 749 | Miss. | 1916
delivered the opinion of the court.
This was a suit filed in the chancery court of Montgomery county by Mrs. Mary J. Tanner, Mrs. Hessie Bailey, and Mrs. Evaline Hawkins against S. L. Tanner, all the parties to the suit, both complainants and defendants, being the heirs at law of J. T. Tanner,' deceased. The bill of complaint alleged that compláin.ants were the' owners and tenants in common of one
.As to one hundred and twenty acres of the land described in the bill of complaint, S. L. Tanner, the defendant, in his answer admitted that the complainants
“Homestead laws are liberally construed in favor of the exemptionist, but never as a pretext to claim that which does not really and substantially exist. All the many liberal opinions of the court on this subject are vitalized by the principle, well expressed by Tarbell, J., in Campbell v. Adair, 45 Miss. 170, in the following, language: ‘One of the leading objects of these statutes is to create, preserve, and protect a home for the family, for the wife, mother, and children, as well as for the husband and father. A characteristic feature of home is a place of residence, of which occupancy is an essential element. As a general rule, to constitute a homestead there must be actual occuptaion and use of the premises as a home for the family. The premises must be appropriated, dedicated, or used for the purpose designated by the law, to wit, as a home, a place to abide and reside on, “a home for the family.” ’ ”
In the case of Mounger v. Gandy, supra, Augustus Gandy lived with' his father and owned lands adjoining the lands there in controversy, and while he and his wife were members of his father’s household and living on lands owned and occupied by his father as a homestead, he mortgaged the lands in question, and Carry
In the present case there was no evidence that this isolated forty-acre tract was used for 'homestead purposes, except that occasionally fuel for household use had been gotten from there. The family occupied seventy-nine acres of land as tenants at will, and 'Mr. J. T. Tanner farmed the one hundred and twenty acres of 'land adjoining the seventy-nine upon which he lived. He was the head of the household, and had a right to choose the homestead. By selling the forty acres he evidently intended to choose the land upon which he lived, and the land cultivated by him and adjoining that upon which he' lived, as his homestead. Ownership in fee ■simple of the homestead is not essential. McGrath v. Sinclair, 55 Miss. 89; King v. Sturges, 56 Miss. 606; Hinds v. Morgan, 75 Miss. 509, 23 So. 35. The evidence in this case fails to establish that the land in question was used for homestead purposes.. The chancellor erred
It was also error to charge the forty acres of land in question with attorneys’ fees and other expenses incident to the suit for partition. ' „
Reversed and remanded.
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