Wiseman v. Parker , 73 Miss. 378 ( 1895 )

Woods, J.,

delivered the opinion of the court.

Mrs. Wiseman had no title nor any vested interest in the lands of her husband during his life, and at his death, by legal devolution, there was cast upon her and her minor children, the homestead of the husband. She took this homestead precisely as the husband left it, and was without power to make a selection of a homestead under § 1972, code of 1892. This-right to select by a statutory declaration belongs solely to the-owner of the lands. If the husband had, during his life, selected the homestead, the wife would be confined to that selection; if no selection has been made by the husband, then the wife may have an allotment of the homestead, as provided by our statutes-in similar cases — for example, as in § 1976 of our code, where provision is made for allotment of the homestead where none has been selected by the exemptionist, in cases where officers holding executions are driven to levy on lands, there being no-other property out of which the execution may be satisfied.

■ While the appellee’s selection of the homestead was not allowable, as the court below properly held, yet it was error to allot, her, by the court’s own action, the quarter section on which the residence of the husband in his lifetime was situated. The statute, § 1976, code of 1892, directs the following general method of designating a homestead in those instances where there has been either no selection or an improper selection: t£A tract of land in the form of (1) a square, or (2) a parallelogram, if practicable, and composed, if practicable, of contiguous parcels, and including the dwelling house, and, if practicable, the other principal buildings, and not to exceed one hundred and sixty acres in area nor two thousand dollars in value. ’ ’ The only absolute requirements are that the land shall not exceed one hundred and sixty acres in area nor two thousand dollars in value, and that the tract allotted shall include the dwelling house. The allotment shall not necessarily be, first, a square, nor, second, a parallelogram. It need not inevitably include the buildings other than the residence, nor be composed, in any event, of contiguous parcels. If practicable, regard being had to the rights and welfare of the exemptionist as well as to the rights of creditors, a square embracing one hundred and sixty acres, and worth two thousand dollars, shall be allotted. If that be not practicable, then a parallelogram of the like area and value shall be allotted, if practicable in the sense of this word just indicated by us. But if neither of these be practicable, reference being had to the situation, value and convenience of the lands to be allotted, the rights of creditors meanwhile not being sacrificed by an unfair and unconscionable cutting up of the estate in the allotment, then such other allotment may be had as may appear fair, reasonable and not oppressive, not to exceed the statutory area and value, and to include the residence. The statute is silent as to legal subdivisions, and an allotment with any boundaries which did not sacrifice the interests of creditors, would not be obnoxious.. The lines of a square quarter section are no more sacred than any other lines, and they may bound an allotment manifestly unfair 'to the exemptionist, for there may be, and doubtless are, innumerable quarter sections of land which are absolutely valueless, except for the dwelling house thereon situated.

It is evident, therefore, that, in the nature of things, a court, of itself, cannot make an allotment which, properly made, demands knowledge of and acquaintance with the entire premises out of -which it is to be carved, while it is probable that a fair-minded, intelligent commission of freeholders or householders, familiar with lands and with agriculture, could and would be able to make the selection with reasonable fairness and accuracy.

Reversed and remanded for further proceedings in accordance with the foregoing opinion.