Thompson, Lampkin & Co. v. Tillotson

56 Miss. 36 | Miss. | 1878

Chalmees, J.,

delivered the opinion of the court.

The bill is filed to enjoin the sale under execution of eighty acres of land, upon the ground that it constitutes the homestead of complainant and his family. Jt is not now, and has not been for several years, occupied as a residence by complainant or any member of his family ; but it is claimed that their absence has been “ temporary,” cum animo revertendi, and occasioned by such “ casualty or necessit}*’ ” as does not cause a forfeiture of the exemption. Complainant removed from the place in January, 1875. He had not returned to it, nor, so far as the record indicates, did he propose -to return to it, when the final decree passed, in September, 1877. He abandoned the place, which was located in Copiah County, because, as he says, he found it impossible to make a livelihood on it for himself and family, and he failed to obtain employment in the neigh-borliood in his vocation as a school-teacher. He removed to Hinds County, where he obtained a flourishing school, and where he has since resided. He registered as a voter at two general elections therein. In order to do so, it was necessary, under the statute, that he should have made affidavit that he was a resident of said county. When he left the place in controversy, in .Copiah County, he rented it out, but reserved the right to return and occupy a house on the premises if, during the year, his school in Hinds County should cease, or if, from any cause, he might desire to return. During the two succeeding years it was rented out for him by a friend, and each year the same stipulation was made with the tenants. Under these circumstances, can he or his wife (the bill is filed in the name of the latter') claim the land as an exempt homestead?

Our present statute is much more explicit, and, we think, narrower in its terms, than art. 281, p. 529, Code of 1857, which received interpretation in Campbell v. Adair, 45 Miss. 170. The controversy in that case was between a creditor and the widow of a deceased exemptionist. The statute declared that the exemption should continue after the death of the husband, “for the benefit of the widow and family of the deceased, some or one of them continuing to occupy it.” It was held that the occupation might be by tenant, though it is to be noted that in that case the widow had returned to and was living on the premises at the date of the decree.

Sect. 2144 of Code of 1871 is much more definite and stringent in its terms. It declares that “ whenever the debtor shall cease to reside on his homestead, it shall be liable for his debts, unless his removal be temporary, by reason of some casualty or necessity, and with the purpose of speedily reoccupying it as soon as the cause of his absence can be removed.”

This language leaves but little room for construction. There must be actual residence on the premises; but temporary absence will not cause a forfeiture, if it be produced by casualty or necessity, and there exists the purpose to speedily reoccupy as soon as the cause of absence can be removed. Nothing is left for the courts to do but to define the meaning of the words “ necessity” and “casualty.’' The word “casualty” evidently refers to some sad accident, — as fire, or flood, or some social or family disaster or misfortune, — which causes a temporary absence. “Necessity” may embrace considerations of health, or travel, or public official engagements, or even a private business emergency of an exceptional and temporary character. The two words may fairly imply various other events, impossible to enumerate; but no proper construction can make them cover an indefinite abandonment for years, induced by the fact that the owner has found elsewhere a location deemed more advantageous. Actual residence is the requirement of the statute, and the only exception tolerated is an absence temporary in its nature, produced by necessity or casualty, and with a purpose of speedy return as soon as the cause of absence has ceased. With the wisdom of this rule we have no concern. lía lex scripta est.

Decree reversed and bill dismissed.