Meyer Bros. Drug Co. v. Fly

63 So. 227, 105 Miss. 752

• Court: Mississippi Supreme Court
• Decided: October 15, 1913
• Status: Published

Opinion

Reed, J.,

delivered the opinion of the court.

Anthony Fly was a resident for some years of McComb City, and was engaged in the drug business there. He purchased a house and lot in that city, which he, with his family, consisting of his wife and several children, oc: cupied as a home. During the latter part of 1909 and the first of 1910 he assisted in organizing a drug business in the city of New Orleans, which was located on Canal street and known as “A. Fly, The Druggist.” The business was incorporated. He was one of the incorporators and stockholders. ' He was also the general manager. The business continued during the year of 1910, and failed. The doors of the store were closed on Christmas Eve, 1910. Mr. Fly’s family moved to New Orleans about March 15, 1910. For several months after the removal of the family to New Orleans, his residence was in charge of Mr. Noland, a friend. Then he rented it to Mrs. Lea, who conducted a boarding house. She continued to rent and occupy it by the month until after the property was levied on by attachment in this case, and until Mr. Fly and his family returned to McComb City. Mrs. Lea rented the house partly furnished; and it appears that only a part of his furniture was taken by Mr. Fly to New Orleans upon the removal of his family to that city, for the reason that they only did light housekeeping there. Mrs. Fly, in her testimony, states that she retained a room in the residence at McComb City during the time it was occupied by Mrs. Lea.

Mr. Fly, when examined at the trial regarding his residence in New Orleans, testified as follows: “Q. Mr. Fly, did I understand you to state that, being an original incorporator of that concern and in active management, you only went there to stay a short time? A. If you will allow me to explain the preliminaries in conjunction with the case, I could cover it more clearly. I couldn’t make any positive statement as to that. Of course, I was bound to have been looking to the future and anticipating this business; but in making an effort to establish this business, it gave me no assurance as to the future. Hence— Q. In other words, if the business had been a great success, you would have remained there ? A. Possibly would; in fact, I know I would. Q. That was your intention at that time? A. Yes; it was a venture, though. Q. If the venture' happened to be successful, you intended to stay there? A. Yes; but, as it didn’t pan out, I took my family back home.”

It was shown by the evidence that Mr. Fly was not. engaged in any business in McComb City in 1910. His business was then in the city of New Orelans. During that year, he did not reside in McComb City, but resided in New Orleans. He continued in the employ of the company of “A. Fly, The Druggist,” until its failure. He contracted the indebtedness sued on in this ease, which was evidenced by his several promissory notes, while he was in New Orleans. Some of the notes are dated February 14, 1910, and others June 9, 1910; and on all his address is given, “New Orleans, La.” We notice that it is shown upon the face of the notes that he deposited or pledged with Meyer Bros. Drug Company, as collateral security for the payment of the notes, fifty shares of the capital stock of “A Fly, The Druggist.” It appears from this, therefore, that he was a large stockholder in the incorporated business. He states that he did not vote in MeComb City in 1910, and he could not say definitely whether he had paid his poll tax there for that year.

Having failed to pay his promissory notes, Meyer Bros. Drug Company sued out attachment upon the ground that Mr. Fly was a nonresident, and a levy was made, under the writ, upon the residence property owned by him in MeComb City. It appears that there were two attachment suits both alike, and, upon agreement, they were tried together as one. After the levy of the attachment writ, and before the trial of the case, Mr. Fly moved to MeComb City and occupied the residence. The court granted a peremptory instruction in his favor, and by the judgment the levy of the writ of attachment on the property was discharged and the lien thereon released.

Appellant’s counsel, in their brief, among other points, present the following: “No citizen and resident of Louisiana, having contracted a debt in Louisiana, payable in Missouri, can, when an attachment is levied in Mississippi on his estate, move from Louisiana to Mississippi* and reoccupy an abandoned homestead, in order to defeat liability of the same to be appropriated to said indebtedness.” Section 2147 of the Code of 1906 provides 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 or sale under execution or attachment, the land and buildings owned and occupied as a residence by such person, not to exceed in value, save as hereinafter provided, three thousand dollars.” By section 2162 of the Code of 1906 exemptions are only allowed in favor of residents of this state. It will therefore be seen that one claiming the benefit of the exemption laws of this state must not only be a householder having a family, bnt as well both a citizen and a resident. Vignaud v. Dean„ 77 Miss. 860, 27 South. 881.

Appellant contends that Mr. Fly had ceased to reside upon his homestead, and that it was therefore liable under the provisions of section 2157 of the Code of 1906, which reads: “Whenever the debtor shall cease to reside on his homestead, it shall be liable to 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.” Where was Mr. Fly’s residence during 1910, while engaged in business in New Orleans'? In Black’s Law Dictionary (2 Ed.), it is stated that a residence is: “Living or dwelling in a certain place permanently or for a considerable length of time. The place where a man makes his home or where he dwells permanently or for an extended period of time.” In Anderson’s Law Dictionary it is stated that: “Residence means a fixed and permanent abode or dwelling place for the time being, as contradistinguished from a mere temporary locality of existence” — citing In re Wrigley, 8 Wend. (N. Y.) 140. Mr. Anderson also defines nonresidence as: “Actual cessation to dwell within a state for an uncertain period without definite intention as to a time for returning, although a general intention to return may exist.”

It cannot be said that it is necessary for a person to remain in a place any length of time in order to acquire a residence there. Whether or not a man is a resident of a place may be determined by all of the circumstances surrounding his living there, such as carrying on business, engaging in a profession, etc. In the case of Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530, Smith, J., delivering the opinion of the court and discussing the question of place of domicile of a man, after stating that the domicile constituted, “first, a residence; and, secondly, the intention of making it the home of the party. There must he the fact and the intent” — continued: “From the nature of the subject, it is impracticable to lay down any very definite rule by which either the fact of a permanent residence, or the intention of permanent residence, is to be ascertained. In none of the decided cases on this subject is there a definite period of time recognized, as being necéssary to create a domicile. The time may be shorter or longer, according to the circumstances; and in all cases the question whether a person has or has not acquired a domicile must depend mainly upon his actual or presumed intention. . . . The place where a man carries on his business or professional occupation, and has a home or permanent residence, is his domicile; and he has all the privileges, and is hound by all the duties, flowing therefrom.”

We understand that domicile is more than a residence; hut the statement of the principle of the law made by Judge Smith will be applicable in our present consideration. Was Mr. Fly a citizen of Louisiana during 1910? From 2 Words and Phrases, p. 1166, we obtain the following : ‘ ‘ Citizens are members of the political community to which they belong. They are the people who compose the community, and who in their associated capacity have established or submitted themselves to the dominion of a government for the promotion of their welfare and protection of their individual, as well as their collective, rights” — citing United States v. Cruikshank, 92 U. S. 542, 549, 23 L. Ed. 588.

Citizenship is a status. It follows residence. It results from residence and intent. If Mr. Fly had in mind, when he moved to New Orleans, a determination to change his residence and permanently reside in New Orleans, then he changed his citizenship from Mississippi to Louisiana. The very facts that he was residing in New Orleans, and was engaged in business there, and had moved from McComb City, and was not in business there, will raise a presumption.that be was a citizen of Louisiana. “A citizen of one state, who in good faith gives up his residence there, and takes up a permanent residence in another state, acquires citizenship in the new place of domicile.” Anderson’s Law Dictionary, citing Chicago, etc., R. Co. v. Ohle (1886) 117 U. S. 127, 6 Sup. Ct. 632, 29 L. Ed. 837. From Mr. Fly’s-very statement of his purpose in removing to New Orleans, to engage in business there, from his residence in that city of about one year, from his business operations, including the organization and continuation until its failure of the drugstore, and from all surrounding circumstances, we are led to conclude that he changed his residence from Mississippi to Louisiana; and, in fact, we believe that his removal, and life in New Orleans, was such that he became a citizen also of Louisiana.

The evidence shows that Mr. Fly had ceased to reside in his homestead in McComb City. We do not believe he has shown his removal to New Orleans was only temporary, and by reason of some casualty or necessity, and that at the time he purposed speedily reoccupying the homestead, and that there was a caiise of absence to be removed. It appears that he went to New Orleans to engage in business which he himself was aiding to organize. He certainly expected the enterprise to be a success; surely he would not have entered into it, had he thought otherwise. According to his own testimony, if the business had been successful, he intended to remain in New Orleans. We conclude that his former homestead in McComb City was, under the provisions of section 2157 of the Code of 1906, liable to his debts after his removal to New Orleans. Bennett v. Dempsey, 94 Miss. 408, 48 South. 901, 136 Am. St. Rep. 584; Moore v. Bradford, 70 Miss. 70, 11 South. 630; Thompson v. Tillotson, 56 Miss. 36. In Thompson v. Tillotson, supra, Judge Chalmers, delivering the opinion of the court, defining “casualty” and “necessity,” said: “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 in 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.”

There had been no reoccupancy by Mr. Fly of the property when the writ of attachment was levied. It was not then his homestead. He remained a resident and citizen of Louisiana until after the writ was levied and the lien therefrom' was fixed on the house and lot formerly his homestead in McComb City. Therefore, at the time the lien attached to the property, he had no right to claim his homestead exemption -in Mississippi. He lost the right when he removed from and ceased to be a resident and citizen of this state. His very status as a nonresident precludes him. The right is only bestowed by the statute upon residents and citizens. The testi-' mony shows that Mr. Fly after the lien was fixed, returned to the state with his family, and before the trial of the case, reoccupied his former home. By so doing, has he defeated the lien?

Mr. Fly contends that this question is resolved in his favor by the decision in the case of Trotter v. Dobbs, 38 Miss. 198. Therein it was decided that the marriage of a man, who owned and occupied as a home property about to be sold under an execution levy, on tbe very day of tbe sale, would entitle bim to claim it as exempt and defeat tbe sale. Tbe rule in this case bas been followed by tbe court in several other cases. Lessley v. Phipps, 49 Miss. 790; Irwin v. Lewis, 50 Miss. 363; Letchford v. Cary, 52 Miss. 791; Wood v. Bowles, 92 Miss. 843, 46 South. 414, 131 Am. St. Rep. 559; Jones v. Hart, 62 Miss. 13; Dulion v. Harkness, 80 Miss. 8, 31 South. 416, 92 Am. St. Rep. 563. The case was severely criticised by Judge Campbell in the case of Richie v. Duke, 70 Miss. 66, 12 South. 208. He referred to tbe decision as “erroneous” and “mischievous,” and as being unsound. In Richie v. Duke it was decided that where land is levied on under execution, and a homestead therein bas been set off to tbe judgment debtor, and the remainder is subject to sale, such debtor cannot, before sale, dispose of tbe homestead allotted to bim, and move on tbe other .land, and claim it as a homestead.

Will tbe decision of Dobbs v. Trotter control tbe present case ? Should tbe very liberal bolding therein in favor of tbe debtor claiming exemption be- extended to • include tbe case now before us ? There is a difference in tbe facts of the-cases. Dobbs was a householder; be bad occupied tbe land for about twelve months before time of tbe sale; be bad hired servants, kept bouse, and bad boarders. In delivering-tbe opinion, Judge Handy decided that these facts constituted bim a citizen of tbe state. By reason of bis residence and citizenship, be was qualified to receive tbe benefits of tbe privilege of homestead exemption conferred by tbe statute to beads of families. He was a resident, a citizen, a householder, and tbe bead of a family. We do not find that Mr. Fly bad all of these qualifications when tbe lien attached. Tbe homestead exemption laws are meant for the benefit of tbe families of those who are residents and citizens of Mississippi. In Hill v. Franklin, 54 Miss. 632, it is decided that exemption is not an estate, but a privilege, depending on contingencies. In Roberts v. Thomas, 94 Miss. 219, 48 South. 408, 136 Am. St. Rep. 573, Judge Fletcher, delivering the opinion, said: “Mere occupancy certainly is not sufficient; hut, when that occupancy is coupled with residence, citizenship, and the status of being head of a family, the right is perfect.”

The question here presented is: Can a nonresident of this state remove to this state and occupy premises upon which a lien has been fixed by levy of attachment, claim it as his homestead, and thereby defeat the lien? We do> not believe, that it has been settled by any former decision of this court. The facts in the cases cited by counsel for appellee are not like those in this case. None of the cases present the claim of a resident of another state-moving into this state, occupying property upon which a lien has been fixed, and asserting the privilege of the homestead exemption. In all of the cases the citizenship and residence of those claiming the exemption was in Mississippi. When Mr. Fry removed from the state, he relinquished his privilege: of homestead. He was no longer within the purpose-or spirit of the provision of the statute providing exemption. . The property, formerly the homestead, but no longer so, was subject to the-satisfaction of his debts. We do not believe that the doctrine announced in Trotter v. Dobbs should be extended to include the case presented by this record. At the time of the attachment, Mr. Fly’s property was liable for his debts under the statute, and was subject to attachment, and to the enforcement of the lien therefrom. We conclude that the liability and the lien so fixed should not be defeated by his return to McComb City and the reoccupancy of the property. The trial court erred in giving the peremptory instruction for appellee.

Reversed, and judgment here for appellant.