59 Miss. 525 | Miss. | 1882
Lead Opinion
delivered the opinion of the court.
The conveyance by Gray, under the circumstances proposed by the appellant to be shown by evidence, was not invalid, although the acknowledgment of it by his wife was defective. If he had resolved to change his residence, and made a sale of his homestead, in order to effect it, and not as a device to evade the legal requirement of his wife’s joinder, the fact that it was made before his actual removal from the land did not make invalid the conveyance, which would have been valid if made after the abandonment occurred. The sale of the homestead having been made, in execution of the purpose to abandon it to acquire another residence, and this purpose having been consummated, it is not material that the conveyance, which was one of the steps in the process of the change of residence actually made, preceded by a short time instead of succeeding the final act of abandoning the homestead. The
Judgment reversed, and cause remanded.
Dissenting Opinion
dissenting.
I am unable to concur in the construction of the statute relative to the conveyance of the homestead, adopted by the majority of the court. If an intention to abandon the homestead is equivalent to an abandonment, that in my opinion is an end of the statute; if it is not, then the deed in this case made by the appellee of his homestead was invalid, because not 'joined in by the wife in the manner prescribed by the statute. I cannot believe that the legislature ever contemplated restricting any other class of owners of homesteads from disposing of them, than those intending to abandon them, for it is not to be presumed that any man will attempt to convey his homestead, unless at the time of making the conveyance he intends to abandon it as a homestead. If the grantor in this case had reconsidered his intention of removing from the premises after the execution of the deed, I do not understand that one of my colleagues would have held the deed good so as to enable the purchaser to evict the seller. So at last it comes to the proposition that it is the subsequent abandonment which gives validity to the conveyance. This is the construction given to a similar statute by the courts of Illinois, to which construction none of us assent. I do not controvert the proposition, that the husband, as the head of the family had the power to fix the domicile, and therefore could without the consent of his wife abandon the homestead, and then make sale of it, but until an- actual abandonment, I think the joinder of the wife in the manner prescribed by the statute is necessary to the validity of the conveyance.
Counsel for the appellee then filed a suggestion of error and argument citing, among others, the following authorities : Taylor v. Hargous, 4 Cal. 268; Dorsey v. McFarland, 7 Cal. 342; Guiod v. Guiod, 14 Cal. 506 ; Harper v. Forbes, 15 Cal. 202; Atkinson v. Atkinson, 40 N. H. 249; Beecher v. Baldy, 7 Mich.