Cook, J.,
delivered the opinion of the court.
The bill of complaint in this case alleges that complainant, J. C. Buchanan, was the owner of a certain tract of land not exceeding one hundred and sixty acres,, nor exceeding two thousand dollars in value: that on March 8, 1909, he conveyed this land by deed to his brother, J. S. Buchanan; that at the time this deed was executed complainant was a single man, a bachelor;. that appellants, Barnes & Co., a creditor of complainant,, on Januaiy 28', 1910, filed a bill in the chancery court alleging that this conveyance was fraudently executed' to hinder and delay said complainant in the collection of its debts a,gainst J. C. Buchanan, complainant in the present ease, and praying that, said deed made by J. C. Buchanan to his brother be canceled, and that the court decree that said Barnes & Co. have a lien on said land for the payment of said debt, that a commissioner [829]*829be appointed to sell said land, and out of the proceeds of said sale pay to Barnes & Co. its indebtedness against said J. C. Buchanan. Appellants further allege that he answered said bill of complaint denying fraud, but the court nevertheless, by its - decree, canceled said deed to his brother, and ordered a sale of the land to satisfy the claim, of Barnes & Co., appointing I. C. Welborn, one of the defendants to the present bill, a master and special commissioner to make the sale.
The bill of complaint in the present case further alleges that, since the rendition of the decree in the former case, appellee has married and bought said land from his brother, and received a deed from him to the land in controversy; that he has moved on said land with his wife, and at the time of the filing of this bill, he is occupying the land in good faith as a homestead. The present bill prays that the lien fixed on said, land by the former decree be canceled as a cloud upon his title, and that the commissioner be enjoined from selling said land under the authority of the decree. Barnes & Co., appellants here, demurred to the bill, and for causes of demurrer assigns the following:
“First. That said bill of complaint shows on its face that the defendant, Barnes & Co., has a lien upon the land in the bill of complaint described, prior to and superior to any claim of the complainant that the same is a homestead, and that the defendant has a right to have L. C. Welborn proceed to enforce said lien in the manner in which he was proceeding as shown by the bill.
“Second. Said bill shows on its face that the complainant does not own the land described in the bill of complaint, or any interest therein entitling him to have the same protected as a homestead.
“Third. The bill shows upon its face facts relating to the conduct of defendant as to said land, which es-topped him to claim said land as a homestead or to claim any interest therein. •
[830]*830“Fourth. For causes to be assigned at tbe hearing.”'
Tbe court overruled the demurrer, and an appeal, was granted to settle the principles of the cause.
Taking the allegations of the bill of complaint as true, was the decree overruling tbe demurrer correct?
Stated differently, in the circumstances, has appelleehere, complainant below, by his marriage after the-decree canceling the deed to his brother, and fixing, a lien on the land in controversy in favor of his (appellee’s) creditors to satisfy their claim, acquired a. homestead right in tbe land, which can be set up to defeat tbe lien acquired by tbe decree in tbe former case?'
In Trotter v. Dobbs, 38 Miss. 198, it was held that, if a judgment debtor becomes a householder and the-head of a family, after tbe rendition of tbe judgment and before tbe sale, be will be entitled to hold exempt from sale, under a levy made to enforce the judgment,, the homestead thus acquired. In that case the judgment debtor was residing on the land before the judgment was rendered, and continued to do so to the day of sale. He was, however, a single man, until the very day of the sale. He married on the day of the sale, and before the sale was actually made. This court in that case said:
“It appears therefore that, whenever a party fills this description of character, be is entitled to tbe benefit of tbe privilege conferred, provided he occupies the position before the land has been sold under execution. For it is as necessary that he should hold tbe property for the support of himself and his family, where he becomes a householder and a head of a family after judgment rendered against him, as when he occupied that relation before the judgment; and the reason of tbe exemption applies as well in the one case as in the other.”
In Irwin v. Lewis, 50 Miss. 363, this court said:
[831]*831' “Two things are necessary in order to consummate the right to the homestead: First, occupancy as a place of residence; second, by the head of a family and householder. If 'the debtor fulfills these conditions, then the premises, to the extent of quantity and value named in the statute is exempt from 'seizure’ and 'sale.’ . .
. Although therefore the property might have been liable to levy and sale at the . . . rendition of judgment, yet, if before either a levy or sale, the property is impressed with the rights of a homestead, the creditor can proceed no further.”
In that case, a bill was filed in the chancery court to enjoin the sale under execution, and it was insisted that the court of chancery had no jurisdiction to enjoin the sale; the remedy being adequate at law. The court held that the chancery court did have jurisdiction.
The last-named case, so far as it has application to the present case, held that although the.person claiming the exemption was not the head of a family at the time the debts were contracted and at the date the judgments were rendered, and for some time thereafter, he could nevertheless claim the exemptions if he was married, the head of a family, .and occupied the premises before the sale under legal process.
In Letchford v. Cary, 52 Miss. 791, this court stated the point involved thus:
“Mrs. Cary bases her right to the homestead on the ground that she actually resided upon the ’land before the sale, and since, but her possession did. not begin until after the recovery of the judgments under which the sheriff sold and Letchford became the purchaser. Letchford claims, on the other hand, that the judgments under which he purchased were liens upon the land before Mrs. Cary took up her residence upon them, and that her occupation cannot divest the lien.”
Citing Trotter v. Dobbs, 38 Miss. 198, the court confirmed Mrs. Cary’s right to the exemption.
[832]*832Thus far the decisions of our court were based upon •claims of the homestead right as against judgment and execution liens. In the present case, a specific lien to pay a specific indebtedness was fixed upon the land, and a commissioner to sell the land was appointed by the court for the express purpose of liquidating the ■indebtedness of appellants.
In Woods v. Bowles, 92 Miss. 848, 46 So. 414, 131 Am. St. Rep. 559, considering the precise point here, the court approved Dulion v.
Free access — add to your briefcase to read the full text and ask questions with AI
Cook, J.,
delivered the opinion of the court.
The bill of complaint in this case alleges that complainant, J. C. Buchanan, was the owner of a certain tract of land not exceeding one hundred and sixty acres,, nor exceeding two thousand dollars in value: that on March 8, 1909, he conveyed this land by deed to his brother, J. S. Buchanan; that at the time this deed was executed complainant was a single man, a bachelor;. that appellants, Barnes & Co., a creditor of complainant,, on Januaiy 28', 1910, filed a bill in the chancery court alleging that this conveyance was fraudently executed' to hinder and delay said complainant in the collection of its debts a,gainst J. C. Buchanan, complainant in the present ease, and praying that, said deed made by J. C. Buchanan to his brother be canceled, and that the court decree that said Barnes & Co. have a lien on said land for the payment of said debt, that a commissioner [829]*829be appointed to sell said land, and out of the proceeds of said sale pay to Barnes & Co. its indebtedness against said J. C. Buchanan. Appellants further allege that he answered said bill of complaint denying fraud, but the court nevertheless, by its - decree, canceled said deed to his brother, and ordered a sale of the land to satisfy the claim, of Barnes & Co., appointing I. C. Welborn, one of the defendants to the present bill, a master and special commissioner to make the sale.
The bill of complaint in the present case further alleges that, since the rendition of the decree in the former case, appellee has married and bought said land from his brother, and received a deed from him to the land in controversy; that he has moved on said land with his wife, and at the time of the filing of this bill, he is occupying the land in good faith as a homestead. The present bill prays that the lien fixed on said, land by the former decree be canceled as a cloud upon his title, and that the commissioner be enjoined from selling said land under the authority of the decree. Barnes & Co., appellants here, demurred to the bill, and for causes of demurrer assigns the following:
“First. That said bill of complaint shows on its face that the defendant, Barnes & Co., has a lien upon the land in the bill of complaint described, prior to and superior to any claim of the complainant that the same is a homestead, and that the defendant has a right to have L. C. Welborn proceed to enforce said lien in the manner in which he was proceeding as shown by the bill.
“Second. Said bill shows on its face that the complainant does not own the land described in the bill of complaint, or any interest therein entitling him to have the same protected as a homestead.
“Third. The bill shows upon its face facts relating to the conduct of defendant as to said land, which es-topped him to claim said land as a homestead or to claim any interest therein. •
[830]*830“Fourth. For causes to be assigned at tbe hearing.”'
Tbe court overruled the demurrer, and an appeal, was granted to settle the principles of the cause.
Taking the allegations of the bill of complaint as true, was the decree overruling tbe demurrer correct?
Stated differently, in the circumstances, has appelleehere, complainant below, by his marriage after the-decree canceling the deed to his brother, and fixing, a lien on the land in controversy in favor of his (appellee’s) creditors to satisfy their claim, acquired a. homestead right in tbe land, which can be set up to defeat tbe lien acquired by tbe decree in tbe former case?'
In Trotter v. Dobbs, 38 Miss. 198, it was held that, if a judgment debtor becomes a householder and the-head of a family, after tbe rendition of tbe judgment and before tbe sale, be will be entitled to hold exempt from sale, under a levy made to enforce the judgment,, the homestead thus acquired. In that case the judgment debtor was residing on the land before the judgment was rendered, and continued to do so to the day of sale. He was, however, a single man, until the very day of the sale. He married on the day of the sale, and before the sale was actually made. This court in that case said:
“It appears therefore that, whenever a party fills this description of character, be is entitled to tbe benefit of tbe privilege conferred, provided he occupies the position before the land has been sold under execution. For it is as necessary that he should hold tbe property for the support of himself and his family, where he becomes a householder and a head of a family after judgment rendered against him, as when he occupied that relation before the judgment; and the reason of tbe exemption applies as well in the one case as in the other.”
In Irwin v. Lewis, 50 Miss. 363, this court said:
[831]*831' “Two things are necessary in order to consummate the right to the homestead: First, occupancy as a place of residence; second, by the head of a family and householder. If 'the debtor fulfills these conditions, then the premises, to the extent of quantity and value named in the statute is exempt from 'seizure’ and 'sale.’ . .
. Although therefore the property might have been liable to levy and sale at the . . . rendition of judgment, yet, if before either a levy or sale, the property is impressed with the rights of a homestead, the creditor can proceed no further.”
In that case, a bill was filed in the chancery court to enjoin the sale under execution, and it was insisted that the court of chancery had no jurisdiction to enjoin the sale; the remedy being adequate at law. The court held that the chancery court did have jurisdiction.
The last-named case, so far as it has application to the present case, held that although the.person claiming the exemption was not the head of a family at the time the debts were contracted and at the date the judgments were rendered, and for some time thereafter, he could nevertheless claim the exemptions if he was married, the head of a family, .and occupied the premises before the sale under legal process.
In Letchford v. Cary, 52 Miss. 791, this court stated the point involved thus:
“Mrs. Cary bases her right to the homestead on the ground that she actually resided upon the ’land before the sale, and since, but her possession did. not begin until after the recovery of the judgments under which the sheriff sold and Letchford became the purchaser. Letchford claims, on the other hand, that the judgments under which he purchased were liens upon the land before Mrs. Cary took up her residence upon them, and that her occupation cannot divest the lien.”
Citing Trotter v. Dobbs, 38 Miss. 198, the court confirmed Mrs. Cary’s right to the exemption.
[832]*832Thus far the decisions of our court were based upon •claims of the homestead right as against judgment and execution liens. In the present case, a specific lien to pay a specific indebtedness was fixed upon the land, and a commissioner to sell the land was appointed by the court for the express purpose of liquidating the ■indebtedness of appellants.
In Woods v. Bowles, 92 Miss. 848, 46 So. 414, 131 Am. St. Rep. 559, considering the precise point here, the court approved Dulion v. Harkness, 80 Miss. 9, 31 So. 416, 92 Am. St. Rep. 563, wherein it was held that there was no difference between judgments at law and decrees in equity as to this right, and used this language:
“In the case now before the court the contention is that, .because the claims forming the foundation of the decree were for rents and profits due the appellants .and arising out of the common estate owned by them before partition, and because the court in making the decree for partition in kind adjudged certain amounts to be due appellants as rents and profits owing them by appellee, and made the sum so adjudged a charge upon the separate interest of 'appellee after partition, a different rule is to be applied. We cannot assent to this. The decree is subject to be defeated in its execution by the same things which would defeat any other decree or judgment.”
Dulion v. Harkness, supra, seems to be peculiarly .applicable, to the instant case. In that case this court ■quotes with approval the following language taken from the opinion of the court in Kuevan v. Specker, 11 Bush (Ky.) 3, viz.:
“These appellees are asking' now to subject the property to the payment of their debts, upon the ground that the conveyance to the son was fraudulent and void as to creditors; and, if made liable by the chancellor, it must be for the reason that it is still the property of 'Theodore Kuevan, the debtor. If his property, himself [833]*833and wife being still in possession, tbe creditors will not be allowed to say tbat he can subject it to satisfy ■our demands because be is still tbe owner, and at tbe same time deny bis right to a homestead for tbe reason tbat be is not tbe owner. If tbe property is made liable for Theodore Kuevan’s debts for tbe reason tbat the conveyance is- fraudulent and void, it must be sold subject to tbe exemptions made by law for tbe benefit ■of tbe debtor.....A fraudulent conveyance does not enlarge tbe rights of creditors, but only leaves them to enforce such rights as if no conveyance bad been made.”
Meyer Bros. v. Fly, 63 So. 227, is not applicable to tbe facts of this ease. Tbat case went off on tbe citizenship and residence of the claimant to tbe homestead right.
We have reviewed the leading cases decided by this court which are pertinent to tbe issues presented in tbe present ease. There was at one time some disposition to question the reasoning of tbe court in Trotter v. Dobbs, supra; but it is certain now tbat tbe rule ■announced in tbat case is tbe finally settled law of this state. It is also finally settled that specific liens fixed by tbe decrees of courts of equity have no greater force upon homestead rights than judgments pronounced by and executions issuing-from law courts.
Woods v. Bowles, supra, and Dulion v. Harkness, supra, are on all fours with tbe present case.
If tbe claimant is otherwise within tbe statute, and is in tbe occupancy of the homestead before it is sold under execution or decree, bis claim is complete. It Is tbe policy of tbe law to encourage tbe acquirement •of homes, and creditor’s rights to collect their dues ■from their debtors is subordinate to tbe rights of tbe family. In all contracts. made in this state, is written tbe exemption statute, and no creditor has a right to -complain.
Affirmed.