De Bardeleben Coal Corp. v. Parker , 164 Miss. 728 ( 1932 )

It is stated in the suggestion of error that if sections 2146, 2147, and 2148, Code 1930, or either of them, apply to the sale of an exempt homestead, the suggestion of error should be sustained; but if neither of these sections with reference to filing deeds for record apply to deeds conveying homesteads that are exempt under the law, then the suggestion of error should be overruled.

It may be that the said sections apply to conveyances of homesteads under certain conditions, but we are of the opinion that they do not apply to the case made by this record. At the time the exempt homestead was conveyed it was occupied by the exemptionist, and the judgment creditor had no rights affected by such conveyance. A judgment lien does not apply to an exempt homestead, and under the law of this state the exemptionist can convey his homestead unaffected by enrolled judgments. See section 1777, Code 1930. As the homestead was occupied at the time of the conveyance as a homestead, the judgment lien did not extend to it, and when the occupant moved away from the homestead it had already been conveyed, and title vested in the grantee of the deed. There was nothing for the judgment to attach to. Johnson et al. v. Cole Manufacturing Co., 144 Miss. 482, 110 So. 428, 429. In that case we said: "We are of the opinion that these sections give no lien until the judgment is enrolled; that it is the enrollment of the judgment that creates the lien; and that the judgment roll is not merely for the purpose of giving notice of a preexisting lien. There being no lien until the enrollment of the judgment on the property of the Johnson-Harlow Lumber Company, title passed by the deed of trust to the trustee and by the sale thereunder to Johnson. In other words, the Cole Manufacturing Company had no legal title or lien that affected the title, and it is immaterial whether Johnson had knowledge of the judgment or not. The judgment did not attach to the property under the circumstances stated. See Hughes v. Lacock, 63 Miss. 112; Planters' Bank of Tennessee v. Conger et al., 20 Miss. (12 Smedes M.), 527; Wyatt v. Beaty, 10 Smedes M. (18 Miss.), 463; Hamilton Shoe Co. v. Walker, 67 Miss. 197, 6 So. 713."

Suggestion of error overruled.