Willis v. Allen

95 So. 435 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellant owned the east one-half of lot 5 and the middle part of lot 6, and also four feet off the north end of the east part of lot 6, Promised Land addition of S'haw, Miss. He purchased first the east one-half of lot 5, which had certain residences or cabins situated thereon, and afterwards bought the property in lot 6, and upon this property erected in the year 1920 a bungalow at the cost of two thousand one hundred dollars. The appellant moved into this new building, but had his water hydrant and some outbuildings on the east one-half of lot 5, which he used as incidents to his- residence, having no water connections on the property in lot 6. The four-foot strip above referred to lies south of the east one-half of lot 5 and joins the middle part of lot 6 on the northeast, and the whole premises so described are in one inclosure. In two of the houses on lot 5 appellant had tenants who also used the hydrants and closets on that lot. He also had one wage hand, who occupied one of the cabins.

In 1921 a judgment was obtained against the appellant in the circuit court for four hundred sixty-five dollars, and this judgment was assigned to the appellees Allen and Collier, who caused execution to be issued thereon, and this execution was levied upon all of the property above described by the sheriff on the 14th day of April, 1922, and notice of sale under execution published by the sheriff; whereupon the appellant sued out a writ of injunction, alleging that he was the owner of said property, and that he occupied it with his family as a homestead, and that he had filed a-homestead declaration in the records of the county, designating said property as his homestead and alleged that the said property was worth less than three thousand dollars. The homestead declaration was filed of record on the 19th day of January, 1922, before the levy of the ex-edition was made. The writ of injunction was issued and answer filed, and a motion made to dissolve the injunction, in which answer it was alleged that the appellant was not entitled to an exemption because he had formerly been divorced from the woman now living with him as his wife, and that after such divorce and prior to his remarriage appellant contracted a common-law marriage with Lulla Buchanan or Lulla Willis, and that he had obtanied no divorce from said Lulla Willis.

The proof for the appellant showed that he bought the property in question in 1920, when values were higher; that the original price paid for the property on lot 5 was two thousand one hundred dollars, and that the original price paid for the property on lot 6 was three hundred fifty dollars, and that the cost of the new bungalow on lot 6 was two thousand one hundred dollars, but that, since said time, property had greatly depreciated in value, and that the appellant had offered to sell all of said property for three thousand dollars, and that he was willing to take that sum therefor at the time of the trial. Several witnesses testified that the property was worth less than three thousand dollars, as it then stood. Other witnesses for the appellees testified that the property was reasonably worth from three thousand three hundred dollars to four thousand dollars. The levy of the execution, as shown by the sheriff’s return, was not made in conformity with section 1827 or section 1828, Hemingway’s Code (sections 2152 'and 2153, Code of 1906) but the chancellor proceeded to hear evidence concerning the value and then decreed that the injunction be made perpetual as to the property in lot 6, and that it be dissolved and the sheriff be allowed to proceed with the sale of the property in lot 5, above described.

Section 1822, Hemingway’s Code (section 2147, Code of 1906), provides for exemptions in cities, towns, and villages, and that every citizen of this state, male or female, being a householder and having a family, residing in any city, town, or village, shall be entitled to hold, exempt from seizure of sale, under execution or attachment, the land or buildings owned and occupied as a residence by such persons, not exceeding in value three thousand dollars, etc. Other sections provide for rural exemptions an amount not exceeding one hundred and sixty acres and not exceeding three thousand dollars in value.

Section 1823, Hemingway’s Code (section 2148, Code of 1906), provides for a selection of homestead, which may be recorded in the records of the county, and that such notice, after being filed for record, shall be notice to all persons thereby affected and shall bind the exemptionist, his wife and his creditors until he execute a new declaration.

Section 1827, Hemingway’s Code (section 2152, Code of 1906), provides for the allotment of the homestead where a homestead declaration has not been filed, and what shall be done in executing process to be levied thereon in case it exceed the quantity or value allowed the exemptionist.

Section 1828, Hemingway’s Code- (Code of 1906, section 2153), reads as follows:

“If the premises be not capable of being so divided as to set off the debtor a part, including the dwelling house and not exceeding three thousand dollars in value, inclusive of improvements, or if the debtor have made a valid homestead declaration, and the homestead exceed three thousand dollars in value, the householders or freeholders shall value the land, inclusive of the dwelling house and buildings; and if the surplus of the valuation, over and above the exempt value, shall, within sixty days,, be paid by the execution debtor, the premises shall not be sold; but if the surplus be not paid within sixty days after the valuation, the officer may advertise and sell the premises, if the same shall bring a greater sum than the exempt value; and out of the proceeds of the sale he shall pay to the execution-debtor the sum of three thousand dollars.”

Section 1829, Hemingway’s Code (section 2154, Code of 1906), provides for the contest of the allotment by the plaintiff; and section 1830, Hemingway’s Code (section 2155, Code of 1906), how the allotment may be contested by the defendant. Construing - all of these sections together, it is plain that, where a homestead declaration :‘s filed, if the creditor undertakes to levy upon the property on the theory that the property is Avorth more than the maximum amount alloAved, the debtor shall be notified and commissioners selected as provided in section 1828, Avith the privilege to the judgment debtor, after such valuation, to pay off the excess valuation Avithin sixty days, or if he deems the valuation unfair, to contest it as provided in section 1830, HemingAvay’s Code, in the court to AA’hieh the execution is returnable, Avhieh in this case Avould be the circuit court. We think it is clear from the proof in the record that the appellant’s right to exemption extended to the entire property above described; it all being under one inclosure and he having reserved the right of use in the property, provided it does not exceed three thousand dollars in value. In other words, this record does not present a case Avhere the judgment debtor has severed the property from his homestead, and he is entitled to claim his exemption in the Avhole property, up to three thousand dollars in value.

Inasmuch as the sheriff and creditors did not proceed as required by the above statutes in making the levy and having the property valued, the appellant was entitled to an injunction, and it Avas error in the court below to dissolve the injunction on this record, but it should have been made permanent, with the right in the appellees to issue a neAV execution and proceed in accordance with the law to determine Avhether the property exceeded the value fixed by the statute. The statute has prescribed a method for determining this question. The evident purpose of the laAVmakers Avas to prevent either the creditor or the debtor defeating the lights of the other by raising a mere conflict between them for the trier of fact to decide. It was the purpose to have the value primarily fixed by disinterested persons, subject to the right of contest as provided in the statute. The privileges granted in these statutes would be defeated by tbe proceeding in tbe chancery court under tbe facts in tbis record.

The judgment will therefore be reversed, the injunction made permanent, with the right of the judgment creditor to proceed in accordance with the statute, should he desire a new execution.

Reversed, and judgment here for appellant.

Reversed.