Chapter 1. Assignment for Benefit of Creditors

§ 85-1-1. Execution of assignment; petition in chancery in case of general assignment.

Assignments for the benefit of creditors may be executed as heretofore; but in every case of a general assignment where the property assigned shall exceed in value the sum of One Thousand Dollars ($1,000.00), the assignee or trustee shall, before he enters upon the discharge of his duties, after taking possession, and within twenty-four (24) hours thereafter, file a petition in the chancery court of the county of the assignor’s residence or place of business, or if he had no residence or place of business in this state, then of the county of the residence of some of his creditors, or where the property or some of it may be, for the administration of the trust. The assignor and all of his creditors must be made parties to the petition.

HISTORY: Codes, 1892, § 117; 1906, § 120; Hemingway’s 1917, § 107; 1930, § 110; 1942, § 298.

Cross References —

Definition of “insolvency proceeding” under Uniform Commercial Code as including assignment for benefit of creditors, see §75-1-201.

Definition of “lien creditor” under Uniform Commercial Code-Secured Transaction as including assignee for benefit of creditors, see §75-9-301.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors §§ 1 et seq.

2A Am. Jur. Pl & Pr Forms (Rev), Assignments for Benefit of Creditors, Form 1 (petition or application for court order assuming jurisdiction of assignor’s estate, confirming designation of trustee or assignee, appointing counsel, and providing for administration of estate).

2A Am. Jur. Pl & Pr Forms (Rev), Assignments for Benefit of Creditors, Form 1.1 (answer-defense-assignment not made by proper party).

2A Am. Jur. Pl & Pr Forms (Rev), Assignments for Benefit of Creditors, Form 2 (order assuming jurisdiction of assignor’s estate, confirming designation of trustee or assignee, appointing counsel, and authorizing public or private sale of assets).

2B Am. Jur. Legal Forms 2d, Assignments, §§ 26:11 et seq. (general assignments).

Law Reviews.

Dowd, Allowing Current Debtors to Retain Collateral without Reaffirming or Redeeming: A Healthy Balance Between Creditor and Debtor Rights. 17 Miss. C. L. Rev. 131, Fall, 1996.

The effect of bankruptcy and encumbrances on mineral interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

JUDICIAL DECISIONS

1. In general.

2. Transactions and transfers creating assignment.

3. —Partial assignments.

4. Effect of assignment on rights and remedies of creditors generally.

5. Validity of assignments generally.

6. Preferences.

7. Reservations and retention of property.

8. Compositions with creditors.

9. Priorities.

10. Jurisdiction of court.

11. Sale or disposition of assets.

12. Fees, expenses and costs.

1. In general.

Notes and solvent credits of an insolvent bank which passed to an assignee by a general assignment before February 1 in any year are taxable in the hands of the assignee and he should render them to the assessor. Gerard v. Duncan, 84 Miss. 731, 36 So. 1034, 1904 Miss. LEXIS 82 (Miss. 1904).

One making a general assignment for the benefit of his creditors, must, in good faith, devote the whole of his nonexempt property to the payment of his debts, parting absolutely with all control over the same, and must reserve no benefit to himself, and retain no power or control over the property. Union & Planters' Bank v. Allen, 77 Miss. 442, 27 So. 631, 1899 Miss. LEXIS 94 (Miss. 1899).

The assignee in a general assignment occupies a dual relation. Weems v. Love Mfg. Co., 74 Miss. 831, 21 So. 915, 1897 Miss. LEXIS 65 (Miss. 1897).

It is only where the assignment is general that the assignor can petition the chancery court under this chapter; A petition by an assignee in a partial assignment should be dismissed. Lowenstein v. Hooker, 71 Miss. 102, 14 So. 531, 1893 Miss. LEXIS 192 (Miss. 1893).

2. Transactions and transfers creating assignment.

Deeds to real property with separate instrument stating deeds were to secure payment of money did not constitute “assignment for benefit of creditors.” Stirling v. Logue, 154 Miss. 812, 123 So. 825, 1929 Miss. LEXIS 178 (Miss. 1929).

It is immaterial that an assignment contained only personalty and that aiding deeds contained only land, where, in law, they constituted one instrument and one transaction. Union & Planters' Bank v. Allen, 77 Miss. 442, 27 So. 631, 1899 Miss. LEXIS 94 (Miss. 1899).

Whether a deed of trust to secure a creditor shall be treated as part of a general assignment made shortly afterward by the debtor is to be determined by the purpose of the creditor in making the former. Pollock v. Sykes, 74 Miss. 700, 21 So. 780, 1897 Miss. LEXIS 59 (Miss. 1897).

Sale of goods, transfer of collaterals and the execution of a deed of trust to a creditor bank, and the assignment for benefit of creditors shortly thereafter, by an insolvent corporation, did not form a general assignment for the benefit of creditors where they were separate and independent transactions. Sells v. Rosedale Grocery & Com. Co., 72 Miss. 590, 17 So. 236, 1895 Miss. LEXIS 9 (Miss. 1895).

The dismissal of the petition of the assignee in a partial assignment carries with it a cross-petition filed by creditors. Lowenstein v. Hooker, 71 Miss. 102, 14 So. 531, 1893 Miss. LEXIS 192 (Miss. 1893).

A conveyance by an officer (state treasurer) to indemnify the sureties on his official bond against loss by defalcation, though embracing all the grantor’s property, is not an assignment subject to the strict rules governing such instruments but is a mortgage enforceable upon the contingency of liability and dependent upon future developments. State v. Hemingway, 69 Miss. 491, 10 So. 575, 1891 Miss. LEXIS 78 (Miss. 1891).

3. —Partial assignments.

A partial assignment is not invalidated by the fact that shortly before its execution the assignor had fraudulently converted a part of his assets into money. Thompson v. Preston, 73 Miss. 587, 19 So. 347, 1895 Miss. LEXIS 167 (Miss. 1895).

The omission of a substantial part of the assignor’s property makes it a partial assignment and preferences thereby created are not void for noncompliance with the statute relating to general assignments. Newman v. Black, 73 Miss. 239, 18 So. 543, 1895 Miss. LEXIS 81 (Miss. 1895).

While an assignment purporting to convey only specific property must be treated as a partial assignment until the contrary be shown, yet if it does in fact convey all of the assignee’s property liable for his debts, it will be dealt with as a general assignment regardless of its terms. Newman v. Black, 73 Miss. 239, 18 So. 543, 1895 Miss. LEXIS 81 (Miss. 1895).

Debtor’s assignment of part of estate for benefit of certain creditors and conveyance of remainder of its property to another creditor held not a general assignment. Starling & Smith Co. v. Flash, 16 So. 875 (Miss. 1894).

This section [Code 1942, § 298] is not applicable to partial assessments but applies only to general assignments. Lowenstein v. Hooker, 71 Miss. 102, 14 So. 531, 1893 Miss. LEXIS 192 (Miss. 1893).

A partial assignment acts only on the property embraced in it. Hence an assignment which without purporting to embrace all the assignor’s property conveys his stock of merchandise in a designated store, together with the notes and books of account pertaining thereto, is partial regardless of what the grantor thought or intended. Jones v. McQueen, 71 Miss. 98, 14 So. 146, 1893 Miss. LEXIS 155 (Miss. 1893).

Whether an assignment is general or partial is to be determined by its terms. Jones v. McQueen, 71 Miss. 98, 14 So. 146, 1893 Miss. LEXIS 155 (Miss. 1893).

4. Effect of assignment on rights and remedies of creditors generally.

A general assignment does not defeat a landlord’s rights but he must apply to the chancery court for the payment of his rent out of the proceeds of the assigned property. Rice v. Harris, 76 Miss. 422, 24 So. 880, 1898 Miss. LEXIS 111 (Miss. 1898).

No jurisdiction over property is acquired by chancery court until petition of assignee is filed and bond approved, and until then creditors may attach the same in the hands of the assignee. Weimer v. Scales, 74 Miss. 1, 19 So. 588, 1896 Miss. LEXIS 94 (Miss. 1896).

However, the landlord suing out an attachment cannot make an actual levy. By application to the chancery court he may proceed against the property or its proceeds. Paine v. Sykes, 72 Miss. 351, 16 So. 903, 1894 Miss. LEXIS 119 (Miss. 1894).

The assignment as written is the law for the administration of the insolvent’s estate; neither the assignee nor the courts may add to or subtract therefrom and as written it must be susceptible of complete execution without depriving creditors of their legal rights or it may not stand against their attack. Rothenberg v. Bradley, 69 Miss. 1, 10 So. 922, 1891 Miss. LEXIS 87 (Miss. 1891); Selleck v. Pollock, 69 Miss. 870, 13 So. 248, 1892 Miss. LEXIS 25 (Miss. 1892); Hiller v. Ellis, 72 Miss. 701, 18 So. 95, 1895 Miss. LEXIS 34 (Miss. 1895).

An assignee is not a bona fide purchaser and therefore goods assigned to him which are liable to be attached for rent, may be still subjected to the landlord’s demand. Paine v. Aberdeen Hotel Co., 60 Miss. 360, 1882 Miss. LEXIS 64 (Miss. 1882); Paine v. Sykes, 72 Miss. 351, 16 So. 903, 1894 Miss. LEXIS 119 (Miss. 1894).

5. Validity of assignments generally.

The failure to file schedules as provided by Code 1942, § 306 does not affect the general assignment where no preferences are made. Kaufman v. Simon, 80 Miss. 189, 31 So. 713, 1902 Miss. LEXIS 241 (Miss. 1902).

The only penalty inflicted by the law upon one who executes or procures the execution to him of a fraudulent assignment is the loss of the benefits of the instrument. Weems v. Love Mfg. Co., 74 Miss. 831, 21 So. 915, 1897 Miss. LEXIS 65 (Miss. 1897).

A subsequent composition agreement and the dealings of the parties thereunder cannot be considered in determining the validity of an assignment, and a deed in aid thereof. Allen v. Union & Planters' Bank, 72 Miss. 549, 17 So. 442, 1895 Miss. LEXIS 18 (Miss. 1895); English v. Friedman, 70 Miss. 457, 12 So. 252, 1892 Miss. LEXIS 112 (Miss. 1892).

In the absence of exceptional circumstances, one partner cannot, without the consent of his copartner, make a general assignment for the benefit of creditors, and being prima facie invalid, the burden of proof to show consent of the other partner is upon those who would maintain it. Mayer v. Bernstein, 69 Miss. 17, 12 So. 257, 1891 Miss. LEXIS 103 (Miss. 1891).

Subsequent ratification by the nonexecuting partner will not affect the liens of creditors who have assailed it. Mayer v. Bernstein, 69 Miss. 17, 12 So. 257, 1891 Miss. LEXIS 103 (Miss. 1891).

A voluntary assignment by an insolvent partnership which devotes partnership assets to the payment of individual debts of a partner is fradulent and void as to firm creditors. Rothenberg v. Bradley, 69 Miss. 1, 10 So. 922, 1891 Miss. LEXIS 87 (Miss. 1891).

The intent which will void a voluntary assignment need not be an actual corrupt intent; where the thing done is unlawful and naturally results in hindering, delaying, or defrauding creditors, the law imputes a fraudulent intent and this is so whether the unlawful thing is shown by extrinsic evidence or appears on the face of the deed. Rothenberg v. Bradley, 69 Miss. 1, 10 So. 922, 1891 Miss. LEXIS 87 (Miss. 1891).

6. Preferences.

Debtor may make assignment preferring general creditors. Bradberry v. Adams, 110 Miss. 581, 70 So. 697, 1915 Miss. LEXIS 79 (Miss. 1915).

The tendency is to recognize the view that preferences were allowed at common law and that the principles of an insolvent or bankrupt law are not applicable to the making of general assignments. Pollock v. Sykes, 74 Miss. 700, 21 So. 780, 1897 Miss. LEXIS 59 (Miss. 1897).

While an insolvent corporation may in good faith prefer creditors, yet the directors cannot prefer themselves. Love Mfg. Co. v. Queen City Mfg. Co., 74 Miss. 290, 20 So. 146, 1896 Miss. LEXIS 103 (Miss. 1896).

The omission of a substantial part of the assignor’s property makes it a partial assignment and preferences thereby created are not void for noncompliance with the statute in relation to general assignments. Newman v. Black, 73 Miss. 239, 18 So. 543, 1895 Miss. LEXIS 81 (Miss. 1895).

An assignment stating the debt of a preferred creditor somewhat in excess of the amount due him, is not thereby invalidated where it authorizes the assignee to correct the schedule of liabilities if by inadvertence there was a mistake or error in the amounts thereof. Goodbar Shoe Co. v. Montgomery, 73 Miss. 73, 19 So. 196, 1895 Miss. LEXIS 140 (Miss. 1895); H. Wetler Mfg.v Dinkins, 70 Miss. 835, 12 So. 584, 1893 Miss. LEXIS 11 (Miss. 1893); Hiller v. Ellis, 72 Miss. 701, 18 So. 95, 1895 Miss. LEXIS 34 (Miss. 1895).

Where formal insolvency proceedings are waived and by consent a decree is entered directing the administrator of an insolvent decedent’s estate to make distribution among creditors, he becomes personally liable for the amounts decreed to them respectively and may prefer such a creditor in a partial assignment of his property. Allen v. Smith Bros. Co., 72 Miss. 689, 18 So. 579, 1895 Miss. LEXIS 72 (Miss. 1895); Anderson v. Tindall, 26 Miss. 332, 1853 Miss. LEXIS 97 (Miss. 1853).

Where a usurious debt is intentionally preferred, such preference is unlawful and avoids the assignment. Hiller v. Ellis, 72 Miss. 701, 18 So. 95, 1895 Miss. LEXIS 34 (Miss. 1895); H. Wetler Mfg.v Dinkins, 70 Miss. 835, 12 So. 584, 1893 Miss. LEXIS 11 (Miss. 1893).

A release from personal liability given the assignor by a preferred creditor for a usurious debt, will not make the assignee, who had notice of the usury, a bona fide purchaser for the protection of such preference. Hiller v. Ellis, 72 Miss. 701, 18 So. 95, 1895 Miss. LEXIS 34 (Miss. 1895); H. Wetler Mfg.v Dinkins, 70 Miss. 835, 12 So. 584, 1893 Miss. LEXIS 11 (Miss. 1893).

Knowledge by the assignee of the unlawful act of the assignor will avoid it although the preferred creditor has paid value. Hiller v. Ellis, 72 Miss. 701, 18 So. 95, 1895 Miss. LEXIS 34 (Miss. 1895); H. Wetler Mfg.v Dinkins, 70 Miss. 835, 12 So. 584, 1893 Miss. LEXIS 11 (Miss. 1893).

An insolvent corporation or individual may prefer creditors by mortgage, sale or assignment in cases untainted by fraud. Sells v. Rosedale Grocery & Com. Co., 72 Miss. 590, 17 So. 236, 1895 Miss. LEXIS 9 (Miss. 1895).

An assignment is not invalid because it prefers a fee to attorneys “for services and advice in and about this assignment and for the execution of this trust,” since in these matters necessary counsel fees are allowable. Memphis Grocery Co. v. Leach, 71 Miss. 959, 15 So. 113, 1894 Miss. LEXIS 12 (Miss. 1894).

An assignment preferring a creditor whose debt embraces usury is not invalid if the amount directed to be paid does not exceed the principal and legal interest; the assignor may waive his personal privilege of defeating all interest. H. Wetler Mfg.v Dinkins, 70 Miss. 835, 12 So. 584, 1893 Miss. LEXIS 11 (Miss. 1893).

But a general assignment directing payment to a particular attorney of a fixed sum as a fee not alone for drawing the assignment but also for services thereafter to be rendered in maintaining it if assailed and that whether the services are required or not, is fraudulent and void. Selleck v. Pollock, 69 Miss. 870, 13 So. 248, 1892 Miss. LEXIS 25 (Miss. 1892).

Where one partner buys the interest of another giving his note therefor and afterward fails and makes an assignment he may prefer this debt and also a debt for money loaned him by the retiring partner after his withdrawal, notwithstanding there was no notice of the withdrawal of the retiring partner and that by reason thereof he might be personally liable for debts subsequently contracted. Richardson v. Davis, 70 Miss. 219, 11 So. 790, 1892 Miss. LEXIS 76 (Miss. 1892).

A preference in favor of the tax collector for taxes on lands owned by the partners individually will avoid the assignment by an insolvent partnership. Rothenberg v. Bradley, 69 Miss. 1, 10 So. 922, 1891 Miss. LEXIS 87 (Miss. 1891).

The preference of a fictitious debt makes the assignment void as to creditors, although the grantor through mistake of law supposed he owed the debt. Whether this would be so if a debt not really due were unintentionally preferred through honest mistake of fact is not decided. Rothenberg v. Bradley, 69 Miss. 1, 10 So. 922, 1891 Miss. LEXIS 87 (Miss. 1891).

7. Reservations and retention of property.

An assignment conveying lands, tenements and “hereditaments” passes to the assignee by the use of the word “hereditaments” the right of the rents and the retention by the assignor of the rent notes and the subsequent delivery of them to a third person, being wholly ineffectual to defeat the assignee’s right to the rents, will not invalidate the assignment. Allen v. Smith Bros. Co., 72 Miss. 689, 18 So. 579, 1895 Miss. LEXIS 72 (Miss. 1895); Hatch v. Sykes, 64 Miss. 307, 1 So. 248, 1886 Miss. LEXIS 62 (Miss. 1886); Kessee v. Sloan, 69 Miss. 369, 11 So. 631, 1891 Miss. LEXIS 98 (Miss. 1891).

Retention of a part of the property assigned under the facts stated held to avoid the assignment. Mahorner v. Forcheimer, 73 Miss. 302, 18 So. 570, 1895 Miss. LEXIS 86 (Miss. 1895).

If an assignor in good faith includes in a general assignment all of his known estate, it cannot be avoided because it afterward appears that he owned land not included in it, of which he knew nothing. Nor will his subsequent bad faith with regard to such land avoid it. English v. Friedman, 70 Miss. 457, 12 So. 252, 1892 Miss. LEXIS 112 (Miss. 1892).

A general voluntary assignment by an insolvent debtor is void as to creditors if he reserves of the assets for his own benefit $100, notwithstanding the assets be of great value and the sum withheld be to meet pressing family necessities. Montgomery v. Goodbar, 69 Miss. 333, 13 So. 624, 1891 Miss. LEXIS 136 (Miss. 1891); Rothenberg v. Bradley, 69 Miss. 1, 10 So. 922, 1891 Miss. LEXIS 87 (Miss. 1891).

A general assignment is not objectionable because it reserves to the assignor the right, with the assent of a majority of the creditors, to appoint another assignee if the one named declines the trust. Smith v. Bowdre, 69 Miss. 692, 13 So. 829, 1892 Miss. LEXIS 39 (Miss. 1892).

The reservation by a partner of money which legally belongs to the firm, and which in general terms the assignment purports to convey, will void the assignment. Rothenberg v. Bradley, 69 Miss. 1, 10 So. 922, 1891 Miss. LEXIS 87 (Miss. 1891).

8. Compositions with creditors.

Where composition agreement between assignors and their creditors provided for redelivery of personalty to assignors but expressly provided for retention of title to realty for the benefit of creditors, the agreement revoked the assignment as to the personalty but did not affect the assignment of the realty. Union & Planters' Bank v. Allen, 77 Miss. 442, 27 So. 631, 1899 Miss. LEXIS 94 (Miss. 1899).

Fact that composition agreement between assignors and their creditors modified the assignment and provided that the assignors, through the trustee, should have the power to sell or mortgage the realty conveyed for the benefit of creditors, did not render the assignment void, since it merely constituted the assignors, on account of their perfect knowledge of the lands involved, agents of the assignee. Union & Planters' Bank v. Allen, 77 Miss. 442, 27 So. 631, 1899 Miss. LEXIS 94 (Miss. 1899).

An extension of time allowed the trustee in which to carry out the liquidation of property assigned for the benefit of creditors of a co-partnership, provided for in a composition agreement of the partnership creditors, did not render the assignment void as to a creditor of one of the partners, where such extension was reasonable and incidental and necessary to the proper execution of the trust. Union & Planters' Bank v. Allen, 77 Miss. 442, 27 So. 631, 1899 Miss. LEXIS 94 (Miss. 1899).

A subsequent composition agreement and the dealings of the parties thereunder cannot be considered in determining the validity of an assignment, and a deed in aid thereof. English v. Friedman, 70 Miss. 457, 12 So. 252, 1892 Miss. LEXIS 112 (Miss. 1892).

9. Priorities.

Mortgagee held entitled to enforce mortgage against assigned property though description void and mortgage not recordable. Sayers & Scoville Co. v. Doak, 127 Miss. 216, 89 So. 917, 1921 Miss. LEXIS 216 (Miss. 1921).

Creditors filing a cross-petition where the assignment is adjudged void, are entitled to priority of payment out of the proceeds of the assigned property. The residue should be ratably distributed among all other creditors including those preferred. Creditors who have not attacked the assignment itself, but merely sought to defeat the preferences made under it, are not entitled to priority over the preferred creditors. Mahorner v. Forcheimer, 73 Miss. 302, 18 So. 570, 1895 Miss. LEXIS 86 (Miss. 1895).

10. Jurisdiction of court.

The court acquires no jurisdiction over the property assigned until the assignee has filed a petition and his bond has been approved and until then creditors may attack the same in the hands of the assignee. Weimer v. Scales, 74 Miss. 1, 19 So. 588, 1896 Miss. LEXIS 94 (Miss. 1896).

Filing the assignment for record in the office of the clerk of the chancery court does not vest the court with jurisdiction over the property. Weimer v. Scales, 74 Miss. 1, 19 So. 588, 1896 Miss. LEXIS 94 (Miss. 1896).

Where the court acquires jurisdiction it draws to it the determination of all controversies in which liens are asserted, including attachments levied thereon. Weimer v. Scales, 74 Miss. 1, 19 So. 588, 1896 Miss. LEXIS 94 (Miss. 1896).

11. Sale or disposition of assets.

In a nonpreferential assignment providing for the payment of liabilities ratably a creditor who holds collateral security is not entitled to dividends upon the face of his claim without crediting the value of the collateral. Union & Planters' Bank v. Duncan, 84 Miss. 467, 36 So. 690, 1904 Miss. LEXIS 78 (Miss. 1904).

An arrangement that the assignors in the negotiation of sales of property assigned for the benefit of creditors, because of their knowledge of the effects and their value, should act as agents of the assignee, is legal. Union & Planters' Bank v. Allen, 77 Miss. 442, 27 So. 631, 1899 Miss. LEXIS 94 (Miss. 1899).

Where previous attachments have been levied, a sale of the property by the assignee-receiver should be made free from the lien of the attachments, and the proceeds should be applied by the court to the payment of the attaching creditors. Weems v. Love Mfg. Co., 74 Miss. 831, 21 So. 915, 1897 Miss. LEXIS 65 (Miss. 1897).

12. Fees, expenses and costs.

Under the facts stated an assignment was held to be general and an attorney was held entitled to have the funds charged with a reasonable fee for his services. Tishomingo Sav. Inst. v. Allen, 76 Miss. 114, 23 So. 305, 1898 Miss. LEXIS 52 (Miss. 1898).

Where an assignment is made after the rendition and enrollment of a judgment against the assignor, the assignee is not entitled as against the judgment creditor to withhold fees, costs, and commissions incurred in resisting his demand out of the proceeds of the assigned property. Pittman v. Hopkins, 74 Miss. 563, 21 So. 606, 1896 Miss. LEXIS 183 (Miss. 1897).

The assignee in a general assignment, acting as receiver, should be allowed counsel fees incurred in successfully defending the assignment or preserving the assigned property but not fees incurred in an unsuccessful defense of the assignment whether it be held void for actual fraud or for merely failing to comply with the statutory requirements. Perry Mason Shoe Co. v. Sykes, 72 Miss. 390, 17 So. 171, 1894 Miss. LEXIS 131 (Miss. 1894); Kelly v. Davis, 37 Miss. 76, 1859 Miss. LEXIS 7 (Miss. 1859).

There is no impropriety in counsel for the receiver also representing creditors who are preferred in the assignment and seeking to uphold it. Perry Mason Shoe Co. v. Sykes, 72 Miss. 390, 17 So. 171, 1894 Miss. LEXIS 131 (Miss. 1894).

The assignee-receiver is not bound to defend an assignment at his own expense but he should give notice to creditors interested to defend or secure indemnity from them against expenses necessary in the defense. Perry Mason Shoe Co. v. Sykes, 72 Miss. 390, 17 So. 171, 1894 Miss. LEXIS 131 (Miss. 1894).

An assignment is not invalid because it prefers a fee to attorneys “for services and advice in and about this assignment and for the execution of this trust,” since in these matters necessary counsel fees are allowable. Memphis Grocery Co. v. Leach, 71 Miss. 959, 15 So. 113, 1894 Miss. LEXIS 12 (Miss. 1894).

The assignee may be allowed a gross sum for his entire services as receiver and manager. Perry Mason Shoe Co. v. Sykes, 72 Miss. 390, 17 So. 171, 1894 Miss. LEXIS 131 (Miss. 1894); Lichtenstein v. Dial, 68 Miss. 54, 8 So. 272, 1890 Miss. LEXIS 11 (Miss. 1890).

But a general assignment directing payment to a particular attorney of a fixed sum as a fee not alone for drawing the assignment but also for services thereafter to be rendered in maintaining it if assailed and that whether the services are required or not, is fradulent and void. Taggert v. Muse, 60 Miss. 870, 1883 Miss. LEXIS 27 (Miss. 1883).

§ 85-1-3. Schedules of liabilities and assets to be filed.

With every general assignment there shall be filed, unless the data all appear on its face, at least two (2) schedules. One of them, a schedule of liabilities, must set forth, so far as known to the assignor:

The name of each of his creditors;

The post-office address of each of them;

The sum due each;

How each debt is evidenced;

The amount of interest each debt bears, and if in any way the debt is usurious, the facts must be stated;

The consideration for each debt; and in case of renewals the history of the transaction must be traced to the original consideration; and

What security, if any, each creditor has.

The other, a schedule of assets, must describe the property conveyed, and give its location and value. Both schedules-and if the data be in the face of the deed, then the assignment-must be under the oath of the assignor avowing the truthfulness of the matters of fact stated. A general assignment which does not comply with this section shall be void as to all preferences contained in it.

HISTORY: Codes, 1892, § 124; 1906, § 128; Hemingway’s 1917, § 115; 1930, § 118; 1942, § 306.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors §§ 29, 30.

2B Am. Jur. Legal Forms 2d, Assignments for Benefit of Creditors §§ 26:44, 26:45. (schedules and inventories).

CJS.

6A C.J.S., Assignments § 63.

JUDICIAL DECISIONS

1. In general.

Deeds to real property with separate instrument stating deeds were to secure payment of money did not constitute “assignment for benefit of creditors.” Stirling v. Logue, 154 Miss. 812, 123 So. 825, 1929 Miss. LEXIS 178 (Miss. 1929).

Failure to file schedules as provided herein does not affect a general assignment containing no preferences. Kaufman v. Simon, 80 Miss. 189, 31 So. 713, 1902 Miss. LEXIS 241 (Miss. 1902).

A substantial compliance is sufficient as where the assignment and schedules together indicate the assets and liabilities so as to give full information as to both. Memphis Grocery Co. v. Leach, 71 Miss. 959, 15 So. 113, 1894 Miss. LEXIS 12 (Miss. 1894).

§ 85-1-5. Bond of assignee or trustee.

The assignee or trustee must file a bond with his petition, to be approved by the clerk, in a penalty equal to the value of all the property assigned and Two Hundred and Fifty Dollars ($250.00) additional, payable to the state, with at least two (2) sufficient sureties, conditioned for the faithful administration of his trust. Any judgment or decree that may be rendered in said cause or proceeding against the principal in the bond may be rendered against the sureties therein.

HISTORY: Codes, 1892, § 118; 1906, § 121; Hemingway’s 1917, § 108; 1930, § 111; 1942, § 299.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors § 104.

CJS.

6A C.J.S., Assignments § 103.

JUDICIAL DECISIONS

1. In general.

Bond of assignee cannot be reduced. United States Fidelity & Guaranty Co. v. Felder, 105 Miss. 283, 62 So. 236, 1913 Miss. LEXIS 203 (Miss. 1913).

No jurisdiction over property is acquired by chancery court until petition of assignee is filed and bond approved, and until then creditors may attach the same in the hands of the assignee. Weimer v. Scales, 74 Miss. 1, 19 So. 588, 1896 Miss. LEXIS 94 (Miss. 1896).

§ 85-1-7. Assignee to become receiver of the court.

The assignee, upon filing the petition and the approval of his bond, shall become a receiver of the court, and shall be entitled to all the rights and privileges, and subject to all the duties and obligations, of other receivers in equity, and may be removed as such as in other cases, and shall not be sued in any other court save by permission of the court, or chancellor in vacation.

HISTORY: Codes, 1892, § 119; 1906, § 122; Hemingway’s 1917, § 109; 1930, § 112; 1942, § 300.

Cross References —

Appointment of receivers, see §§11-5-151 et seq.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors §§ 88, 123-132.

CJS.

6A C.J.S., Assignments §§ 104 et seq.

JUDICIAL DECISIONS

1. In general.

Assignee’s duty to represent interest of creditors in suit questioning validity of assignment. United States Fidelity & Guaranty Co. v. Jefferson Davis County, 114 Miss. 474, 75 So. 247, 1917 Miss. LEXIS 47 (Miss. 1917).

Assignee will not cease to be assignee for benefit of creditors, although assignment be declared void. United States Fidelity & Guaranty Co. v. Jefferson Davis County, 114 Miss. 474, 75 So. 247, 1917 Miss. LEXIS 47 (Miss. 1917).

Assignee held to have right to possession of goods superior to lien for purchase money. Goodbar & Co. v. Knight, 89 Miss. 124, 42 So. 539, 1906 Miss. LEXIS 49 (Miss. 1906).

§ 85-1-9. Inventories.

The assignee shall, as speedily as may be, and within ten (10) days after the filing of his petition, unless the court or the chancellor in vacation, shall, for cause, extend the time, prepare and file in the cause a complete and perfect inventory of the property and effects assigned. If, after making the first inventory, any other property or effects conveyed by the deed of assignment shall come to the possession or knowledge of the assignee, he shall make a supplemental inventory thereof speedily, and within ten (10) days thereafter, unless the time therefor shall be extended as provided in the case of the original inventory.

HISTORY: Codes, 1892, § 120; 1906, § 123; Hemingway’s 1917, § 110; 1930, § 113; 1942, § 301.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors § 100.

2B Am. Jur. Legal Forms 2d, Assignments for Benefit of Creditors §§ 26:44, 26:45 (schedules and inventories).

CJS.

6A C.J.S., Assignments § 63.

§ 85-1-11. Creditor’s cross-petition to set aside assignment.

Any creditor may file in said cause a cross-petition against the receiver, and he may make the assignor or other persons, whether parties to the suit before that time or not, defendants thereto, and show to the court that the assignment is fraudulent, or ought not, for any other reasons, to be enforced; and property other than that in the trustee’s or assignee’s hands may be shown to be liable for the debts of the assignor.

HISTORY: Codes, 1892, § 121; 1906, § 124; Hemingway’s 1917, § 111; 1930, § 114; 1942, § 302.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors § 106.

2A Am. Jur. Pl & Pr Forms (Rev), Assignment for Benefit of Creditors, Forms 111 et seq.

JUDICIAL DECISIONS

1. In general.

2. Grounds of attack.

3. Pleadings.

1. In general.

A petition under a partial assignment will be dismissed as only the assignee in a general assignment can petition to have a trust administered; A cross-petition by the creditors falls with the dismissal of the assignee’s petition. Lowenstein v. Hooker, 71 Miss. 102, 14 So. 531, 1893 Miss. LEXIS 192 (Miss. 1893).

2. Grounds of attack.

Provision in assignment for allowance of attorney’s fees by chancery court held not to create a preference. Dodwell v. Rieves, 114 Miss. 4, 74 So. 770, 1917 Miss. LEXIS 4 (Miss. 1917).

General assignment by directors of bank without stockholders’ consent held valid. Dodwell v. Rieves, 114 Miss. 4, 74 So. 770, 1917 Miss. LEXIS 4 (Miss. 1917).

An assignment for the benefit of its creditors executed under an exigency, requiring prompt action by a corporation acting through a legal quorum of its directors in pursuance of directions from the stockholders at a meeting in which a majority of the stock and stockholders were represented, is not void or voidable at the suit of creditors, none of the stockholders objecting thereto because prompt notice was not given of the meetings. State Nat'l Bank v. Duncan, 83 Miss. 610, 35 So. 569 (Miss. 1904).

A creditor cannot for the first time on appeal urge that the preferences in the assignment made by his debtor for the benefit of all creditors should be declared void for the failure of the debtor to file a proper schedule of his assets. Lowenstein v. Leach, 16 So. 493 (Miss. 1895).

3. Pleadings.

Not error to compel parties filing doubtful pleading to elect whether to treat it as cross-petition or original bill in equity. Metcalfe v. Merchants' & Planters' Bank, 89 Miss. 649, 41 So. 377, 1906 Miss. LEXIS 40 (Miss. 1906).

§ 85-1-13. Creditor’s cross-petition to set aside assignment; rights of successful creditor.

The creditor filing a cross-petition, if he succeed in establishing that the assignment ought not to be enforced, shall have priority over all other creditors in the distribution of the proceeds of the property in the assignee’s hands, and a lien, from the filing of his cross-petition, on other property he may seek to have subjected to his debt; and in aid of such lien, a writ of sequestration, injunction, or other remedial process may issue.

HISTORY: Codes, 1892, § 121; 1906, § 124; Hemingway’s 1917, § 111; 1930, § 114; 1942, § 302.

Cross References —

Affidavit for attachment, see §11-33-9.

Priority of unemployment compensation contributions during distribution of employer’s assets pursuant to assignment for benefit of creditors, see §71-5-377.

RESEARCH REFERENCES

Am. Jur.

2A Am. Jur. Pl & Pr Forms (Rev), Assignment for Benefit of Creditors, Forms 111 et seq.

JUDICIAL DECISIONS

1. In general.

Creditors who unsuccessfully attack a general assignment by a corporation on the sole ground that it had not been duly executed are not thereby precluded from participating in the distribution of the assets. Duncan v. State Nat'l Bank, 85 Miss. 681, 38 So. 45, 1904 Miss. LEXIS 184 (Miss. 1904).

Creditors filing a cross-petition and establishing their debts are entitled to a personal decree against the assignor even if they fail to vacate the assignment. Pollock v. Sykes, 74 Miss. 700, 21 So. 780, 1897 Miss. LEXIS 59 (Miss. 1897).

Creditors who, by cross-petition, successfully assail an assignment, are entitled to priority; those who do not assail the assignment but merely the preferences, are not entitled to priority over preferred creditors but share with them in the distribution of the residue. Mahorner v. Forcheimer, 73 Miss. 302, 18 So. 570, 1895 Miss. LEXIS 86 (Miss. 1895).

§ 85-1-15. Creditor’s cross-petition to set aside assignment; rights of unsuccessful creditor.

Whenever a creditor may seek to set aside the assignment for any reason as provided in this chapter, and fail to do so, he shall nevertheless receive the share provided for him according to the terms of the instrument, first, however, deducting therefrom all the court costs, reasonable attorneys’ fees, and other necessary expenses incurred by the assignee in defending the suit.

HISTORY: Codes, 1906, § 125; Hemingway’s 1917, § 112; 1930, § 115; 1942, § 303.

RESEARCH REFERENCES

ALR.

Validity of statute allowing attorneys’ fees to successful claimant but not to defendant, or vice versa. 73 A.L.R.3d 515.

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors §§ 106 et seq.

2A Am. Jur. Pl & Pr Forms (Rev), Assignment for Benefit of Creditors, Forms 111 et seq.

§ 85-1-17. Personal decree against assignor.

A creditor may demand, by cross-petition, a personal decree against the assignor for the amount of his debt; but priority of such personal decrees shall not affect the distribution of the assigned effects, or the proceeds thereof.

HISTORY: Codes, 1892, § 122; 1906, § 126; Hemingway’s 1917, § 113; 1930, § 116; 1942, § 304.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors §§ 106 et seq.

§ 85-1-19. Duty of creditors to establish claims.

It shall be the duty of all creditors to establish their claims in said cause to the satisfaction of the court; and any creditor may oppose and controvert the demand or claim, in whole or in part, of any other person; and the court shall, on motion, cause all proper issues to be made up to test the validity of claims.

HISTORY: Codes, 1892, § 123; 1906, § 127; Hemingway’s 1917, § 114; 1930, § 117; 1942, § 305.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments for Benefit of Creditors §§ 123, 124.

2A Am. Jur. Pl & Pr Forms (Rev), Assignments for Benefit of Creditors, Forms 41 et seq. (administration of estate).

JUDICIAL DECISIONS

1. In general.

The scheme of the chapter contemplates one proceeding in which assignee, assignor and all creditors are required to appear as parties and make good their demands. Mahorner v. Forcheimer, 73 Miss. 302, 18 So. 570, 1895 Miss. LEXIS 86 (Miss. 1895).

Chapter 3. Exempt Property

§ 85-3-1. Property exempt from seizure under execution or attachment.

There shall be exempt from seizure under execution or attachment:

Tangible personal property of the following kinds selected by the debtor, not exceeding Ten Thousand Dollars ($10,000.00) in cumulative value:

Household goods, wearing apparel, books, animals or crops;

Motor vehicles;

Implements, professional books or tools of the trade;

Cash on hand;

Professionally prescribed health aids;

Any items of tangible personal property worth less than Two Hundred Dollars ($200.00) each.

Household goods, as used in this paragraph (a), means clothing, furniture, appliances, one (1) radio and one (1) television, one (1) firearm, one (1) lawn mower, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the debtor and his dependents; however, works of art, electronic entertainment equipment (except one (1) television and one (1) radio), jewelry (other than wedding rings), and items acquired as antiques are not included within the scope of the term “household goods.” This paragraph (a) shall not apply to distress warrants issued for collection of taxes due the state or to wages described in Section 85-3-4.

(i) The proceeds of insurance on property, real and personal, exempt from execution or attachment, and the proceeds of the sale of such property.

Income from disability insurance.

All property in this state, real, personal and mixed, for the satisfaction of a judgment or claim in favor of another state or political subdivision of another state for failure to pay that state’s or that political subdivision’s income tax on benefits received from a pension or other retirement plan. As used in this paragraph (c), “pension or other retirement plan” includes:

An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;

An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and

An individual retirement account.

One (1) mobile home, trailer, manufactured housing, or similar type dwelling owned and occupied as the primary residence by the debtor, not exceeding a value of Thirty Thousand Dollars ($30,000.00); in determining this value, existing encumbrances on the dwelling, including taxes and all other liens, shall first be deducted from the actual value of the dwelling. A debtor is not entitled to the exemption of a mobile home as personal property who claims a homestead exemption under Section 85-3-21, and the exemption shall not apply to collection of delinquent taxes under Sections 27-41-101 through 27-41-109.

Assets held in, or monies payable to the participant or beneficiary from, whether vested or not, (i) a pension, profit-sharing, stock bonus or similar plan or contract established to provide retirement benefits for the participant or beneficiary and qualified under Section 401(a), 403(a), or 403(b) of the Internal Revenue Code (or corresponding provisions of any successor law), including a retirement plan for self-employed individuals qualified under one (1) of such enumerated sections, (ii) an eligible deferred compensation plan described in Section 457(b) of the Internal Revenue Code (or corresponding provisions of any successor law), or (iii) an individual retirement account or an individual retirement annuity within the meaning of Section 408 of the Internal Revenue Code (or corresponding provisions of any successor law), including a simplified employee pension plan.

Monies paid into or, to the extent payments out are applied to tuition or other qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, monies paid out of the assets of and the income from any validly existing qualified tuition program authorized under Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, including, but not limited to, the Mississippi Prepaid Affordable College Tuition (MPACT) Program established under Sections 37-155-1 through 37-155-27 and the Mississippi Affordable College Savings (MACS) Program established under Sections 37-155-101 through 37-155-125.

The assets of a health savings account, including any interest accrued thereon, established pursuant to a health savings account program as provided in the Health Savings Accounts Act (Sections 83-62-1 through 83-62-9).

In addition to all other exemptions listed in this section, there shall be an additional exemption of property having a value of Fifty Thousand Dollars ($50,000.00) of whatever type, whether real, personal or mixed, tangible or intangible, including deposits of money, available to any Mississippi resident who is seventy (70) years of age or older.

An amount not to exceed Five Thousand Dollars ($5,000.00) of earned income tax credit proceeds.

An amount not to exceed Five Thousand Dollars ($5,000.00) of federal tax refund proceeds.

An amount not to exceed Five Thousand Dollars ($5,000.00) of state tax refund proceeds.

Subject to the provisions of Section 27-7-1003(2), the assets of a catastrophe savings account, including any interest accrued thereon, established under Sections 27-7-1001 through 27-7-1007.

Nothing in this section shall in any way affect the rights or remedies of the holder or owner of a statutory lien or voluntary security interest.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 1 (23); 1857, ch. 61, art. 280; 1871, § 2131; 1880, § 1244; 1892, § 1963; 1906, § 2139; Hemingway’s 1917, § 1812; 1930, § 1755; 1942, § 307; Laws, 1932, ch. 138; Laws, 1948, ch. 232, § 1; Laws, 1962, 1st Ex Sess. ch. 7; Laws, 1966, ch. 318, § 1; Laws, 1980, ch. 540, § 1; Laws, 1981, ch. 469, § 3; Laws, 1987, ch. 473; Laws, 1991, ch. 479, § 7; Laws, 1995, ch. 565, § 1; Laws, 2002, ch. 594, § 1; Laws, 2006, ch. 595, § 1; Laws, 2008, ch. 557, § 1; Laws, 2015, ch. 457, § 6, eff from and after Jan. 1, 2015.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the fourth line of paragraph (d). The words “income tax on benefits received from a pension or other retirement plan so used in this paragraph” was changed to “income tax on benefits received from a pension or other retirement plan. As used in this paragraph”. The Joint Committee ratified the correction at its June 3, 2003, meeting.

Editor’s Notes —

Laws of 1981, ch. 469, § 6 provides as follows:

“SECTION 6. The provisions of this act shall apply only to attachment, execution or garnishment proceedings instituted on or after the effective date of this act [April 7, 1981], and shall not defeat, extinguish or render void any claim or defense existing with respect to attachment, execution or garnishment proceedings instituted prior to the effective date of this act.”

Amendment Notes —

The 2002 amendment rewrote the section.

The 2006 amendment, in (a)(vi), substituted “items” for “item” and added “each” at the end; repealed former (c), which read, “(c) All property, real, personal and mixed, for the collection or enforcement of any order or judgment, in whole or in part, issued by any court for civil or criminal contempt of said court; expressly excepted herefrom are such orders or judgments for the payment of alimony, separate maintenance and child support actions‘; redesignated former (d) through (f) as present (c) through (e); substituted “paragraph (c)” for “paragraph (d)” in (c); substituted “Thirty Thousand Dollars ($30,000.00)” for “Twenty Thousand Dollars ($20,000.00)” in (d); added (f) through (j); redesignated former (g) as (k), and made minor stylistic changes.

The 2008 amendment added (f), and redesignated the remaining subsections accordingly; substituted “Health Savings Accounts Act (Sections 83-62-1 through 83-62-9)” for “Health Savings Accounts Act, Section 83-62-1 et seq.” in (g); and made minor stylistic changes.

The 2015 amendment substituted “lawn mower” for “lawnmower” in the first sentence of the last paragraph of (a); and added ( l

Cross References —

Cases in which attachment is remedy, see §11-33-1.

What writ is to be served upon and what is bound by levy, see §11-33-23.

Answer by person summoned as garnishee, see §11-35-25.

Garnishee suggesting exemptions, see §11-35-33.

Exemption of city employees retirement fund, see §21-29-51.

Exemption of disability and relief fund for firemen and policemen, see §21-29-257.

Exemption of public employees’ retirement system funds, see §25-11-129.

Exemptions from ad valorem taxation generally, see §§27-31-1 et seq.

Exemption of property from execution sale, see §43-33-33.

Exemption of property of municipality, see §43-35-25.

Exemption of employee trust plan, see §71-1-43.

Exemption of unemployment compensation benefits, see §71-5-539.

Fire insurance generally, see §§83-13-5 et seq.

Federal exemptions state residents prohibited from taking, see §85-3-2.

Descent of exempt property, see §§91-1-19 et seq.

Federal Aspects—

Employee Retirement Income Security Act of 1974, see 29 USCS §§ 1001 et seq.

Sections 401, 403, 408, and 457 of the Internal Revenue Code, referred to in (e), are codified at 26 USCS §§ 401, 403, 408, and 457.

Section 529 of the Internal Revenue Code, referred to in (f), is codified at 26 USCS § 529.

OPINIONS OF THE ATTORNEY GENERAL

It is within the discretion of the levying officer to make a good faith determination as to what property would be considered exempt under this section. 1996 Miss. Op. Att'y Gen. 163.

RESEARCH REFERENCES

ALR.

Interest of vendee under executory contract as subject to execution, judgment lien, or attachment. 1 A.L.R.2d 727.

Exemption of insurance proceeds as available to assignee of policy. 1 A.L.R.2d 1031.

Endowment policy as life insurance within exemption law. 30 A.L.R.2d 751.

Exemption of motor vehicle from seizure for debt. 37 A.L.R.2d 714.

Statutory provision that specified fund or property shall be “exempt from taxation,” “exempt from any tax,” or the like, as exempting such property from estate or succession taxes. 47 A.L.R.2d 999.

Value of room and board furnished to servant as included in total salary or earnings for purpose of statute exempting wages. 51 A.L.R.2d 947.

Wife as head of family within homestead or other property exemption provision. 67 A.L.R.2d 779.

Validity of contractual stipulation or provision waiving debtor’s exemption. 94 A.L.R.2d 967.

Construction and effect of statutory exemptions of proceeds of workmen’s compensation awards. 31 A.L.R.3d 532.

What is “necessary” furniture entitled to exemption from seizure for debt. 41 A.L.R.3d 607.

Choice of law as to exemption of property from execution. 100 A.L.R.3d 1235.

Search and seizure: what constitutes abandonment of personal property within rule that search and seizure of abandoned property is not unreasonable-modern cases. 40 A.L.R.4th 381.

Enforcement of claim for alimony or support, or for attorneys’ fees and costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Construction and Application of Exemption for Firearms under State Law. 46 A.L.R.6th 401.

Purchase of Annuity by Debtor as Fraud on Creditors. 74 A.L.R.6th 549.

Avoidance under 11 USCS § 522(f)(1) of the Bankruptcy Code of 1978 of judicial lien on debtor’s exempt personal property. 47 A.L.R. Fed. 937.

Avoidance under 11 USCS § 552(f)(2) of the Bankruptcy Code of 1978 of nonpossessory, nonpurchase-money security interest in debtor’s exempt personal property. 55 A.L.R. Fed. 353.

Individual retirement accounts as exempt property in bankruptcy. 133 A.L.R. Fed. 1.

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 28 et seq.

Law Reviews.

Montague, Are retirement funds exempt from the reach of creditors in Mississippi? 10 Miss. C. L. Rev 125, Spring, 1990.

Comment: ERISA and bankruptcy: can creditors reach a Chapter 7 debtor’s pension?. 61 Miss. L. J. 389 (Fall 1991).

JUDICIAL DECISIONS

1. In general.

2. Exempt personal property generally.

3. Tools equipment, etc., of trade or profession.

4. Animals.

5. Wages.

6. Proceeds derived from personal property.

7. Selection of exempt personal property.

8. Waiver of exemption.

1. In general.

Bankruptcy debtor’s exemption claims in his simplified employee pension-individual retirement accounts (SEP-IRA) extended only to amounts reasonably necessary for support of debtor as well as of any dependents. In re Henderson, 167 B.R. 67, 1993 Bankr. LEXIS 2177 (Bankr. N.D. Miss. 1993).

A debtor in Mississippi may utilize Section 522(f)(2) of the Bankruptcy Code to avoid a voluntary nonpurchase-money security interest that impairs an exemption to which the debtor would be entitled but for the exclusionary language of subsection (e) of this section. In re Kennedy, 139 B.R. 389, 1992 Bankr. LEXIS 666 (Bankr. N.D. Miss. 1992).

Under the statute, the proceeds of a voluntary sale of a homestead are exempt under all circumstances, regardless of the vendor’s continuing to be a householder, or his acquiring another homestead, or the intent with which he keeps the proceeds. Davis v. Lammons, 246 Miss. 624, 151 So. 2d 907, 1963 Miss. LEXIS 487 (Miss. 1963).

Although an exemption is a personal privilege and as a general rule cannot be taken advantage of, except by the execution or attachment debtor, an exception is that his wife can make the claim for him. Reid v. Halpin, 185 Miss. 396, 188 So. 310, 1939 Miss. LEXIS 165 (Miss. 1939).

Laws granting exemption from levy and sale under execution are construed liberally in favor of the exemptionist. Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630, 1905 Miss. LEXIS 66 (Miss. 1905); Dreyfus v. Barton, 98 Miss. 758, 54 So. 254, 1910 Miss. LEXIS 122 (Miss. 1910).

The section [Code 1942, § 307] has no application to a surviving partner who is administering the partnership assets. Lance v. Calhoun, 85 Miss. 375, 37 So. 1014, 1904 Miss. LEXIS 171 (Miss. 1904).

Legislature cannot increase exemption so as to render additional property exempt from liability for existing debts. Johnson v. Fletcher, 54 Miss. 628, 1877 Miss. LEXIS 61 (Miss. 1877).

2. Exempt personal property generally.

In the event that the term “motor vehicles” was not clear and unambiguous so that the court should employ the canons of statutory construction to interpret the meaning of “motor vehicles” in Miss. Code Ann. §85-3-1(a), the court found as follows: (1) in other Mississippi statutes, the ordinary use of “motor vehicles” included motorcycles, (2) the Mississippi Legislature used the term “motor vehicles” in §85-3-1(a) without adding language to include some types of motor vehicles but not others, (3) the sections of the Mississippi Code that discussed motorcycles demonstrated that for the purposes of traffic regulation, conveyance, registration, and taxation, the Mississippi Legislature considered motorcycles to be a type of motor vehicles. Without indication to the contrary, there was no reason to presume that the Mississippi Legislature had any different intent with respect to its treatment of motorcycles under the Exemption Statute. In re Clemons, 441 B.R. 519, 2010 Bankr. LEXIS 2943 (Bankr. N.D. Miss. 2010).

Term “motor vehicles” is clear and unambiguous and should be given its plain meaning; furthermore, (i) the plain meaning of “motor vehicles” includes motorcycles, (ii) if the Mississippi Legislature had desired to narrow the types of “motor vehicles” affected by the Exemption Statute, Miss. Code Ann. §85-3-1, it certainly knew how to add restricting language to accomplish that goal, and (iii) accordingly, motorcycles fall within the category “motor vehicles” and as such are a type of tangible personal property included in §85-3-1. A debtor may, therefore, claim a motorcycle as exempt property pursuant to § 85-3-1. In re Clemons, 441 B.R. 519, 2010 Bankr. LEXIS 2943 (Bankr. N.D. Miss. 2010).

State exemption statute and 11 USCS § 522(f) must be applied together, thus, debtors seeking to avoid nonpurchase-money security interests under 11 USCS § 522(f)(B) in “household goods” under Miss. Code Ann. §85-3-1(a)(vi) were limited to the definition of “household goods” in the Mississippi statute, such that for example, a debtor could avoid a lien on only one television, but Miss. Code Ann. §85-3-1(a)(iv) did expand the number of items that could be eligible for judicial lien avoidance pursuant to 11 USCS § 522(f)(1)(A). In re McCoy, 2003 Bankr. LEXIS 374 (Bankr. N.D. Miss. Apr. 23, 2003).

As a result of the 1995 amendment limiting the range of personal property that may be exempted from seizure, a debtor is prohibited from claiming a mobile home as exempt personal property. Cobbins v. Henderson (In re Cobbins), 227 F.3d 302, 2000 U.S. App. LEXIS 23862 (5th Cir. Miss. 2000).

Bank deposit or account was in nature of “intangible” personal property, which could not be exempted from garnishment under Mississippi statute authorizing debtor to claim exemption only in tangible personal property not exceeding $10,000 in value. Cartwright v. Deposit Guar. Nat'l Bank, 675 So. 2d 847, 1996 Miss. LEXIS 302 (Miss. 1996).

Household goods which would normally be exempt under this section from seizure in bankruptcy proceedings, are not protected from holder of nonpossessory, nonpurchase-money security interest in goods by virtue of this section or federal exemption provisions. In re Fox, 902 F.2d 411, 1990 U.S. App. LEXIS 8925 (5th Cir. Miss. 1990).

Chapter 7 debtor could not avoid nonpossessory, nonpurchase money security interest in household goods; under exemption scheme, household goods which are subject to voluntary security interest are not subject to exemption. In re Eiland, 95 B.R. 41, 1988 Bankr. LEXIS 2267 (Bankr. N.D. Miss. 1988).

A decree appointing a receiver impliedly limits the right of the receiver to property which is not exempt from execution. Levy v. T. R. Rosell & Co., 82 Miss. 527, 34 So. 321, 1903 Miss. LEXIS 154 (Miss. 1903).

A possessory claim is sufficient to entitle a debtor to the exemption. Stein v. Hamblett, 66 Miss. 112, 5 So. 524, 1888 Miss. LEXIS 72 (Miss. 1888).

Money due for damage to exempt property is not itself exempt. Johnson v. Edde, 58 Miss. 664, 1881 Miss. LEXIS 21 (Miss. 1881).

3. Tools equipment, etc., of trade or profession.

A printing-press is not exempt as the tool of a mechanic. Frantz v. Dobson, 64 Miss. 631, 2 So. 75, 1887 Miss. LEXIS 83 (Miss. 1887).

A dentist is not a mechanic within the statute. Whitcomb v. Reid, 31 Miss. 567, 1856 Miss. LEXIS 119 (Miss. 1856).

4. Animals.

Two horses used by business man in driving from home to place of business, in making pleasure trips with family, and occasionally making business trips, not work horses. Tishomingo Sav. Institution v. Young, 87 Miss. 473, 40 So. 9, 1905 Miss. LEXIS 167 (Miss. 1905).

Statute (Acts 1875, p. 122) increasing exemption from one horse to two horses did not protect additional horse from liability to judgment enrolled before its passage. Johnson v. Fletcher, 54 Miss. 628, 1877 Miss. LEXIS 61 (Miss. 1877).

5. Wages.

The 1966 amendment to §85-3-1(10)(a) required the garnishee to withhold funds from an employee’s wages up until the return day of the writ or until the full amount of the judgment had been collected, whichever occurred first. Leasy v. Zollicoffer, 389 So. 2d 1378, 1980 Miss. LEXIS 2111 (Miss. 1980).

In garnishment proceedings, where part of defendant’s salary was exempt from garnishment because paid in advance in a larger amount than would, under statute exempting $50 a month, have been exempt if none of the salary had been paid in advance, remainder of such salary held not subject to statutory exemption. Peoples Bank v. Gore, 178 Miss. 216, 172 So. 506, 1937 Miss. LEXIS 192 (Miss. 1937).

The exemption of a laborer’s wages is conferred upon heads of families only. Lipp v. Genovese, 125 N.Y.S. 978, 69 Misc. 357, 1910 N.Y. Misc. LEXIS 568 (N.Y. App. Term 1910).

Money collected by an attorney on a claim due his client for wages exempt under this section [Code 1942, § 307] is not exempt from the attorney’s lien. Halsell v. Turner, 84 Miss. 432, 36 So. 531, 1904 Miss. LEXIS 60 (Miss. 1904).

Exemptions are highly favored by the law, and the protection may not be defeated by the intention or neglect of the garnishee; Hence, a garnishee who pays a judgment rendered against it as such, and as such takes an assignment of the judgment on which it is issued, remains liable to the judgment debtor where the debt garnished was exempt, as the monthly wages of the head of a family, and the garnishee fails to suggest the claim of exemption. City of Laurel v. Turner, 80 Miss. 530, 31 So. 965, 1902 Miss. LEXIS 281 (Miss. 1902).

The price due a contractor for building a house, although he may do some unascertained portion of the work himself, is not wages within the meaning of this section [Code 1942, § 307]. Heard v. Crum, 73 Miss. 157, 18 So. 934, 1895 Miss. LEXIS 121 (Miss. 1895).

The exemption of the wages of a laborer, being the head of a family, was designed for the protection of the debtor’s family and cannot be given a construction that would defeat its beneficent purpose. Hence, while the laborer being the head of a family and working for wages at eighty-one dollars per month, payable monthly, he is entitled to demand and receive his wages as they fall due monthly, notwithstanding the garnishment of his employer, and where such garnishment is returnable several months after the services thereof, neither the amount then due, when less than one hundred dollars, nor such other wages as the debtor may earn during the interval preceeding judgment under the same contract with garnishee, can be subjected by a writ of garnishment and the garnishee should be discharged. Chapman v. Berry, 73 Miss. 437, 18 So. 918, 1895 Miss. LEXIS 107 (Miss. 1895).

The exemption of the wages of a laborer, the head of a family, is not of one hundred dollars yearly or monthly, but exists as often as wages within the amount are sought to be subjected to legal process. Chandler v. White, 71 Miss. 161, 14 So. 454, 1893 Miss. LEXIS 176 (Miss. 1893).

The exemption of wages due a laborer who is a citizen of the state, for work done here, cannot be defeated by garnishing the debtor, a railroad company in another state, it having a line of railroad there as well as in this state. Both debtor and creditor being residents of this state, the court will give effect to our exemption laws regardless of the laws of such other state. Illinois C. R. Co. v. Smith, 70 Miss. 344, 12 So. 461, 1892 Miss. LEXIS 129 (Miss. 1892), overruled, Southern P. R. Co. v. A. J. Lyon & Co., 99 Miss. 186, 54 So. 728, 1911 Miss. LEXIS 188 (Miss. 1911), overruled in part, Southern P. R. Co. v. A. J. Lyon & Co., 54 So. 784 (Miss. 1911).

The “laborer” whose wages to the amount of one hundred dollars are exempt from garnishment, is one who subsists by physical toil in distinction from one who subsists by professional skill. Where physical toil is the main ingredient of services rendered, although directed and made more valuable by skill, the person performing it is a laborer within the meaning of the statute. Williams v. Link, 64 Miss. 641, 1 So. 907, 1887 Miss. LEXIS 85 (Miss. 1887).

The statute denies to creditors the fruits of one’s toil not exceeding one hundred dollars, that this compensation for labor may go to supply the wants of himself and family. Williams v. Link, 64 Miss. 641, 1 So. 907, 1887 Miss. LEXIS 85 (Miss. 1887).

The wages of a laborer engaged as a clerk in a mercantile store, to the amount of one hundred dollars, are exempt from garnishment by virtue of the provision of this statute. Williams v. Link, 64 Miss. 641, 1 So. 907, 1887 Miss. LEXIS 85 (Miss. 1887).

6. Proceeds derived from personal property.

The statute exempts the proceeds of the sale of exempt property, but in order to obtain such exemption, the proceeds must come from the sale of property which, at the time of sale, is actually a homestead meeting the requirements of the statute. Patterson v. Adams, 245 So. 2d 13, 1971 Miss. LEXIS 1348 (Miss. 1971).

Where a husband and wife, having occupied certain property as their homestead, acquired new property, intending to live there permanently and make it their homestead, and moved to the new property, vacating the old homestead, the former homestead was not exempt from the claim of a creditor, and the proceeds of the sale of the former homestead which took place two weeks after the move to the new property, were not exempt. Patterson v. Adams, 245 So. 2d 13, 1971 Miss. LEXIS 1348 (Miss. 1971).

Where the evidence established that the funds paid into court in a garnishment proceeding were for the purchase price of raw milk sold by the defendants to a dairy corporation, the defendants were not employees of the corporation and the funds were not for personal services, and consequently the tenth subsection of Code 1942 § 307 was inapplicable. Beam v. Greenville Mills, 215 So. 2d 253, 1968 Miss. LEXIS 1345 (Miss. 1968).

Where debtor could claim exemption of specific articles sold under attachment, he is entitled to proceeds of articles in class bringing highest price. Anderson v. Dever, 109 Miss. 235, 68 So. 166, 1915 Miss. LEXIS 141 (Miss. 1915).

Paragraph (b) of tenth clause of this section [Code 1942, § 307] is inapplicable where no sale of property and no attempt to subject proceeds of sale to creditor’s debt. Bennett Bros. v. Dempsey, 94 Miss. 406, 48 So. 901, 1908 Miss. LEXIS 55 (Miss. 1908).

Money due for damage to exempt property is not itself exempt. Johnson v. Edde, 58 Miss. 664, 1881 Miss. LEXIS 21 (Miss. 1881).

7. Selection of exempt personal property.

Exemptionist may select personal property of $250 in value out of any that he has, regardless of kind and character; could select truck worth less than $250 in lieu of property exempted by general provision. Hartfield v. Anderson, 156 Miss. 724, 126 So. 830, 1930 Miss. LEXIS 219 (Miss. 1930).

The right of selection is not affected by the fraud of the debtor. Moseley v. Anderson, 40 Miss. 49, 1866 Miss. LEXIS 47 (Miss. 1866).

8. Waiver of exemption.

Waiver of exemption in note is void. Teague v. Weeks, 89 Miss. 360, 42 So. 172, 1906 Miss. LEXIS 15 (Miss. 1906).

§ 85-3-2. Certain federal exemptions prohibited.

In accordance with the provisions of Section 522(b) of the Bankruptcy Reform Act of 1978, as amended (11 U.S.C.S. 522(b)), residents of the State of Mississippi shall not be entitled to the federal exemptions provided in Section 522(d) of the Bankruptcy Reform Act of 1978, as amended (11 U.S.C.S. 522(d)). Nothing in this section shall affect the exemptions given to individuals of Mississippi by the Constitution and statutes of the State of Mississippi.

HISTORY: Laws, 1991, ch. 614, § 1, eff from and after July 1, 1991.

JUDICIAL DECISIONS

1. In general.

Through this section, the State of Mississippi has elected to “opt-out” of the federal exemptions scheme set forth in Section 522(d) of the Bankruptcy Code. In re Kennedy, 139 B.R. 389, 1992 Bankr. LEXIS 666 (Bankr. N.D. Miss. 1992).

§ 85-3-3. Execution or attachment of personal property; selection of exempt property.

Where an officer shall be about to levy an execution or attachment on personal property, some of which shall be claimed as exempt, he shall demand of the defendant that he make selection of such property as is exempt to him and in reference to which he has the right of selection; and the defendant shall then and there make his selection, or, failing to do so, the officer shall make it for him, and any selection so made shall be conclusive on the defendant.

HISTORY: Codes, 1892, § 1966; 1906, § 2142; Hemingway’s 1917, § 1817; 1930, § 1761; 1942, § 313.

Cross References —

What writ is to be served on and what is bound by levy, see §11-33-23.

OPINIONS OF THE ATTORNEY GENERAL

Under Section 85-3-3, when an officer is about to levy an execution or attachment, the officer should inform the defendant that he has a right to select certain personal property as exempt from execution. The officer should then demand that the defendant select such property that he wishes to claim as exempt. If the defendant refuses or fails to make a selection, the officer shall make the selection for him. 1996 Miss. Op. Att'y Gen. 248.

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 300, 301.

10 Am. Jur. Pl & Pr Forms (Rev), Exemptions, Forms 1 et seq. (notice, schedule, and selection).

JUDICIAL DECISIONS

1. In general.

General release of joint tortfeasor does not discharge liability of other joint tortfeasor who is neither party to release nor pays consideration for it, notwithstanding language in release releasing “all others whatsoever,” where parol evidence undisputedly establishes intent to release only tortfeasor who is party to it. Smith v. Falke, 474 So. 2d 1044, 1985 Miss. LEXIS 2176 (Miss. 1985).

Failure of wife to sign deed conveying all timber on all of grantor’s land without reserving any exemption made deed void as to homestead. Robert G. Bruce Co. v. Spears, 181 Miss. 786, 181 So. 333, 1938 Miss. LEXIS 119 (Miss. 1938).

Under this section where, though defendant claimed the property to be exempt, the officer made no request that he make selection, and no notice was given to him to make it, defendant did not, by failing to select the property, forfeit his right to the exemption. Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630, 1905 Miss. LEXIS 66 (Miss. 1905).

A defendant whose property is levied upon under execution does not waive his right to claim his exemptions by asserting that the property belongs to his wife. Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630, 1905 Miss. LEXIS 66 (Miss. 1905).

§ 85-3-4. Execution or attachment of wages, salaries or other compensation; limitations.

  1. The wages, salaries or other compensation of laborers or employees, residents of this state, shall be exempt from seizure under attachment, execution or garnishment for a period of thirty (30) days from the date of service of any writ of attachment, execution or garnishment.
  2. After the passage of the period of thirty (30) days described in subsection (1) of this section, the maximum part of the aggregate disposable earnings (as defined by Section 1672(b) of Title 15, United States Code Annotated) of an individual that may be levied by attachment, execution or garnishment shall be:
    1. In the case of earnings for any workweek, the lesser amount of either,
      1. Twenty-five percent (25%) of his disposable earnings for that week, or
      2. The amount by which his disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage (prescribed by section 206 (a)(1) of Title 29, United States Code Annotated) in effect at the time the earnings are payable; or
    2. In the case of earnings for any period other than a week, the amount by which his disposable earnings exceed the following “multiple” of the federal minimum hourly wage which is equivalent in effect to that set forth in subparagraph (a)(ii) of this subsection (2): The number of workweeks, or fractions thereof multiplied by thirty (30) multiplied by the applicable federal minimum wage.
    1. The restrictions of subsection (1) and (2) of this section do not apply in the case of:
      1. Any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by state law, which affords substantial due process, and which is subject to judicial review.
      2. Any debt due for any state or local tax.
    2. Except as provided in subparagraph (b)(iii) of this subsection (3), the maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed:
      1. Where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), fifty percent (50%) of such individual’s disposable earnings for that week; and
      2. Where such individual is not supporting such a spouse or dependent child described in subparagraph (b)(i) of this subsection (3), sixty percent (60%) of such individual’s disposable earnings for that week;
      3. With respect to the disposable earnings of any individual for that workweek, the fifty percent (50%) specified in subparagraph (b)(i) of this subsection (3) shall be deemed to be fifty-five percent (55%) and the sixty percent (60%) specified in subparagraph (b)(ii) of this subsection (3) shall be deemed to be sixty-five percent (65%), if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the period of twelve (12) weeks which ends with the beginning of such workweek.

HISTORY: Laws, 1980, ch. 540, § 2; Laws, 1981, ch. 469, § 4, eff from and after passage (approved April 7, 1981).

Editor’s Notes —

Section 6 of Chapter 469, Laws of 1981, provides as follows:

“SECTION 6. The provisions of this act shall apply only to attachment, execution or garnishment proceedings instituted on or after the effective date of this act [April 7, 1981], and shall not defeat, extinguish or render void any claim or defense existing with respect to attachment, execution or garnishment proceedings instituted prior to the effective date of this act.”

Cross References —

Writ of garnishment binding nonexempt percentage of disposable earnings, see §11-35-23.

Inapplicability of wages to provision permitting debtor to select tangible personal property of any kind for exemption in lieu of certain items specifically exempted by law, see §85-3-1.

OPINIONS OF THE ATTORNEY GENERAL

Statute setting maximum amount of earnings that may be levied by garnishment at “amount by which employee’s disposable earnings for week exceed thirty times the federal minimum hourly wage” contemplated possibility that federal minimum wage might be changed and that withholding amount should be recalculated accordingly. 1991 Miss. Op. Att'y Gen. 450.

JUDICIAL DECISIONS

1. In general.

2. Obligee no longer has custody.

1. In general.

The 25 percent restriction on wage garnishment set forth in §85-3-4(2)(a) applied to the garnishment of a father’s wages in satisfaction of a judgment for past due child support, even though the 25 percent restriction does not apply in cases where the judgment is for the support of another person, where the mother no longer had custody of the children because custody had been placed in the father. Sorrell v. Borner, 593 So. 2d 986, 1991 Miss. LEXIS 593 (Miss. 1991).

2. Obligee no longer has custody.

Under Miss. Ann. §85-3-4(2)(a)(i), the trial court erred in ordering 55 percent, rather than 25 percent, withheld from a father’s disposable income, because when a judgment was awarded to the mother for past-due child support, she no longer had custody of the child. Reasor v. Jordan, 110 So.3d 307, 2013 Miss. LEXIS 144 (Miss. 2013).

§ 85-3-5. Execution or attachment of personal property; plaintiff’s indemnity bond; liability of officer.

If any sheriff or other officer shall levy or be about to levy an execution or attachment on any personal property claimed as exempt, and a doubt shall arise as to the liability of the property to be sold, he may demand of the plaintiff a bond, with sufficient sureties, payable to such officer, in a sufficient penalty, conditioned to indemnify and save harmless the officer against all damages which he may sustain in consequence of the seizure or sale of the property, and to pay the defendant all damages which he may sustain in consequence of the seizure or sale; and if such bond be not given, after reasonable notice, in writing, from the officer to the plaintiff, his agent or attorney, that it is required, the officer may refuse to levy, or, having levied, may dismiss the levy; but if the required bond be given, the officer shall seize and sell or dispose of the property according to the command of the process in his hands, and shall return the bond with the execution or attachment. If an officer shall seize personal property exempt from execution, he shall be liable to an action at the suit of the owner for all damages sustained thereby, unless he have taken an indemnifying bond.

HISTORY: Codes, 1857, ch. 61, art. 280 (8); 1871, §§ 2132, 2134; 1880, §§ 1245, 1247; 1892, §§ 1967, 1969; 1906, §§ 2143, 2145; Hemingway’s 1917, §§ 1818, 1820; 1930, §§ 1762, 1764; 1942, §§ 314, 316.

Cross References —

Bond of creditor, see §11-33-11.

Levy upon personal property, see §13-3-125.

Requirement of bond of indemnity, see §13-3-157.

Remedy on bond of indemnity, see §13-3-159.

OPINIONS OF THE ATTORNEY GENERAL

Under this section, an officer may demand the plaintiff post a bond to protect the officer from liability when there is a question as to whether the property is exempt from execution. If a defendant claims an exemption for certain personal property and the sheriff has a question as to whether such an exemption exists, the sheriff may demand the plaintiff post a bond prior to seizure of the property or if the property has already been seized then the sheriff may require the plaintiff to post a bond prior to the sale of the property. 1996 Miss. Op. Att'y Gen. 163.

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 300, 301.

JUDICIAL DECISIONS

1. In general; validity.

2. Failure of officer to return bond.

3. Refusal of officer to levy execution; reasonable notice.

1. In general; validity.

Where sheriff had no right to demand indemnity bond, bond taken by him not valid. Chenault v. W. T. Adams Mach. Co., 98 Miss. 326, 53 So. 629, 1910 Miss. LEXIS 65 (Miss. 1910).

Where an officer has levied an execution on property, which is claimed as exempt and demands an indemnifying bond of the plaintiff under Code 1892, § 1967 but by mistake accepts a bond under another section (Code 1892, § 3482) the conditions of the two statutory bonds being different, and proceeds and sells the property, the bond actually taken will be treated in any suit thereon as though properly conditioned under the statute (Code 1892, § 946) providing that a bond in any legal proceeding which has had the effect of a bond conditioned according to law shall be treated as if properly conditioned. Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630, 1905 Miss. LEXIS 66 (Miss. 1905).

Where an idemnifying bond has been taken under this section [Code 1942, § 314], title to the property in the plaintiff’s usee, the defendant in execution, is essential to the maintenance of a suit upon such indemnifying bond and a plaintiff’s usee who has conveyed the property to another is without title, although the conveyance has been adjudged fraudulent as to his creditors. Williamson v. Wilkinson, 81 Miss. 503, 33 So. 282, 1902 Miss. LEXIS 172 (Miss. 1902).

2. Failure of officer to return bond.

Failure of officer to return indemnity bond along with return of execution and delay in returning same for three or four years and not until suit instituted upon it, invalidated the bond. New Albany Wholesale Grocery Co. v. Wells, 114 Miss. 144, 74 So. 817, 1917 Miss. LEXIS 14 (Miss. 1917).

3. Refusal of officer to levy execution; reasonable notice.

Where the sheriff wrote to a judgment creditor in Illinois two weeks before the first day of the court, demanding a bond to indemnify him against liability for levying an execution and advising such creditor that the execution would be held unexecuted until such bond was furnished, and the creditor failed to answer, two weeks was not an unreasonable time for the sheriff to wait for the creditor to furnish the bond so as to charge the sheriff with liability for failure to return the execution on the return day thereof. W. T. Rawleigh Co. v. Foxworth, 194 Miss. 205, 11 So. 2d 919, 1943 Miss. LEXIS 56 (Miss. 1943).

§ 85-3-7. Execution or attachment of personal property; defendant may sue on plaintiff’s indemnity bond.

After the execution of such bond, the defendant in the execution or attachment shall be barred of any claim against the officer so seizing or selling the property, unless the obligors in the bond be or become insolvent, or the bond be otherwise invalid; and the defendant in execution or attachment may sue on the bond in the name of the payee, for his use, and recover double damages for the loss he has sustained by the seizure or sale of the property.

HISTORY: Codes, 1871, § 2133; 1880, § 1246; 1892, § 1968; 1906, § 2144; Hemingway’s 1917, § 1819; 1930, § 1763; 1942, § 315.

Cross References —

Remedy on bond of indemnity, see §13-3-159.

JUDICIAL DECISIONS

1. In general.

To maintain an action on indemnifying bond hereunder, it is essential that title to the property levied upon be in the defendant in execution, and where he had transferred title to another, although to defraud creditors, no action could be maintained on the bond. Williamson v. Wilkinson, 81 Miss. 503, 33 So. 282, 1902 Miss. LEXIS 172 (Miss. 1902).

The defendant may elect the remedy provided by statute, or he may sue on the indemnifying bond where one is given. Woolner v. Spalding, 65 Miss. 204, 3 So. 583, 1887 Miss. LEXIS 38 (Miss. 1887).

The effect of the law is to transfer to the obligors therein the responsibility which at common law rested upon the sheriff for illegal seizure of property not liable to the writ; This substituted remedy is in lieu of any action against the sheriff, unless the obligors on the bond shall be or become insolvent, or the levy be otherwise invalid. Swain v. Alcorn, 50 Miss. 320, 1874 Miss. LEXIS 61 (Miss. 1874).

§ 85-3-9. Execution or attachment of personal property; replevy by defendant.

Any defendant whose exempt property is seized may replevy the same by giving bond with sureties, to be approved by the officer seizing it, in double the value of the property, payable to the plaintiff in the execution or attachment, and conditioned to have the property forthcoming, to abide the event of an issue to be made up at the return term of the process; and in such case the officer shall deliver the property to the defendant, and return the bond with the process; and at the return term an issue shall be made up under the direction of the court, and tried, as in case of the trial of the right of property levied upon and claimed by a third person, and if found for defendant he shall recover costs, damages, and a penalty of Twenty Dollars ($20.00) of the plaintiff and his sureties on the bond of indemnity, if any have been given; but if found for plaintiff, he shall have judgment against the obligors in the replevy bond for the value of the property and costs of suit.

HISTORY: Codes, 1857, ch. 61, art. 280 (8); 1871, § 2134; 1880, § 1247; 1892, § 1969; 1906, § 2145; Hemingway’s 1917, § 1820; 1930, § 1764; 1942, § 316.

JUDICIAL DECISIONS

1. In general.

Judgment debtor replevying property as exempt cannot recover attorney’s fees, in absence of fraud, wilful wrong, oppression, or malice. Clayton-Hughes Co. v. Glass, 138 Miss. 839, 103 So. 501, 1925 Miss. LEXIS 91 (Miss. 1925).

The exemptionist is not confined to the remedy given by the statute. Moseley v. Anderson, 40 Miss. 49, 1866 Miss. LEXIS 47 (Miss. 1866).

§ 85-3-11. Proceeds of life insurance policy; named beneficiaries; certain proceeds of policies exempt from liability for debts of person insured.

  1. Except as provided in subsection (2), all proceeds of a life insurance policy including cash surrender and loan values, shall inure to the party or parties named as the beneficiaries thereof, free from all liability for the debts of the person whose life was insured, even though such person paid the premium thereon. In addition, all proceeds, including cash surrender and loan values, of a policy of life insurance owned by or assigned to another, shall inure to the beneficiary or beneficiaries named therein, subject to terms of any assignment, free from all liability for debts of the person whose life was insured.
    1. The exemption authorized in subsection (1) shall not apply to that portion of the cash surrender value or loan value of any life insurance policy which exceeds the sum of Fifty Thousand Dollars ($50,000.00) as a result of premiums paid or premium deposits or other payments made within twelve (12) months of issuance of a writ of seizure, attachment, garnishment or other process or the filing of a voluntary or involuntary bankruptcy proceeding under the United States Code.
    2. The amount of any premiums for the insurance paid with intent to defraud creditors, with interest thereon, shall inure to the benefit of such creditors from the proceeds of the policy; but the insurer issuing the policy shall be discharged of all liabilities thereon by payment of its proceeds in accordance with its terms, unless before such payment the insurer shall have written notice, by or on behalf of a creditor, of a claim to recover for transfer made or premiums paid with intent to defraud creditors with specification of the amount claimed.
    3. Notwithstanding any other provision to the contrary, a creditor possessing a valid assignment from the policy owner may recover from either the cash surrender value or the proceeds of the life insurance policy the amount secured by the assignment with interest.

HISTORY: Codes, 1880, § 1261; 1892, § 1964; 1906, § 2140; Hemingway’s 1917, § 1813; 1930, § 1756; 1942, § 308; Laws, 1966, ch. 519, § 1; Laws, 1994, ch. 621, § 1, eff from and after July 1, 1994.

Cross References —

Proceeds of life insurance policy not being subject to judicial process or assignment while in hands of company, see §83-7-5.

RESEARCH REFERENCES

ALR.

Exemption of insurance proceeds as available to assignee of policy. 1 A.L.R.2d 1031.

Capacity of minor insured to effect a change of beneficiary. 14 A.L.R.2d 375.

Assignability of proceeds of claim for personal injury or death. 33 A.L.R.4th 82.

Who is “parent” entitled to proceeds of serviceman’s group life insurance, where there are no named beneficiaries, and no surviving widow or children, under 38 USCS § 770(a). 73 A.L.R. Fed. 135.

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 168, 169, 179, 181, 187.

JUDICIAL DECISIONS

1. In general.

2. Exempt insurance proceeds generally.

3. Policy payable to insured’s estate.

4. Excess.

1. In general.

Statutes of exemption are to be liberally construed in favor of the beneficiary. United States Fidelity & Guaranty Co. v. Holt, 148 Miss. 885, 114 So. 818, 1927 Miss. LEXIS 87 (Miss. 1927).

This and the following section [Code 1942, §§ 308 and 309] do not provide cumulative exemptions, but should be so construed as to give each distributee, under the latter section [Code 1942, § 309], sufficient only to make the whole insurance money received by him on the life of the decedent equal to his ratable share of five thousand dollars. Cozine v. Grimes, 76 Miss. 284, 76 Miss. 294, 24 So. 197, 1898 Miss. LEXIS 79 (Miss. 1898).

The object of the section [Code 1942, § 308] is to secure the beneficiary of the policy the proceeds thereof, freed from liability for the debts of another, who has paid the premiums. Yale v. McLaurin, 66 Miss. 461, 5 So. 689, 1889 Miss. LEXIS 128 (Miss. 1889); United States Fidelity & Guaranty Co. v. Holt, 148 Miss. 885, 114 So. 818, 1927 Miss. LEXIS 87 (Miss. 1927).

2. Exempt insurance proceeds generally.

The cash surrender value of life insurance policies in which the insured reserved the right to change the beneficiary in each policy was not exempt from an action to garnish the funds to partially satisfy a decree for child support and alimony. Bonds v. Bonds, 409 So. 2d 704, 1982 Miss. LEXIS 1851 (Miss. 1982).

Proceeds of policy on guardian’s life, payable to ward, as beneficiary, did not liquidate guardian’s debt to ward, since such proceeds were free from all liabilities of the insured. United States Fidelity & Guaranty Co. v. Holt, 148 Miss. 885, 114 So. 818, 1927 Miss. LEXIS 87 (Miss. 1927).

However, proceeds of life policy on husband’s life, payable to wife, were not exempt from judgment against her on note signed by both. Goza v. Provine, 140 Miss. 315, 105 So. 534, 1925 Miss. LEXIS 264 (Miss. 1925).

Defense of mistake is available where collector of lodge obtained note from widow for debt of deceased husband, by undue influence, telling her she could not collect insurance otherwise. Sykes v. Moore, 115 Miss. 508, 76 So. 538, 1917 Miss. LEXIS 225 (Miss. 1917), overruled, First Nat'l Bank v. Carver, 375 So. 2d 1198, 27 U.C.C. Rep. Serv. (CBC) 1039, 1979 Miss. LEXIS 2471 (Miss. 1979).

Proceeds of life insurance are owned by beneficiary and may not be subjected to insured’s debts without beneficiary’s consent whether insured was solvent or insolvent when paid premiums. Johnson v. Bacon, 92 Miss. 156, 45 So. 858, 1907 Miss. LEXIS 28 (Miss. 1907).

Life insurance to amount of $10,000, payable to any special beneficiary is exempted, and not subject to payment of any debts including premiums paid by insured while he was insolvent, and though paid with intent to hinder, delay and defraud his creditors. Johnson v. Bacon, 92 Miss. 156, 45 So. 858, 1907 Miss. LEXIS 28 (Miss. 1907).

The procurer of a life insurance policy designating another as the beneficiary has no power, without the beneficiary’s consent, to transfer any interest in it to a third party by deed or will. Jackson Bank v. Williams, 77 Miss. 398, 26 So. 965, 1899 Miss. LEXIS 66 (Miss. 1899).

A life insurance policy designating a beneficiary is the property of its beneficiary the moment of its issuance, whether then delivered or not. Jackson Bank v. Williams, 77 Miss. 398, 26 So. 965, 1899 Miss. LEXIS 66 (Miss. 1899).

The proceeds of a life insurance policy payable to the wife of the insured, are not, upon his death, assets of his estate, but belong to the wife, and she and the sureties on her bond as administratrix of his estate, are not liable for a devastavit by reason of her having appropriated the whole amount, which included the sum of two thousand dollars in excess of the ten thousand dollars’ exemption. Jones v. Patty, 73 Miss. 179, 18 So. 794, 1895 Miss. LEXIS 98 (Miss. 1895).

3. Policy payable to insured’s estate.

Under the provisions of this section [Code 1942, § 308] where one insured his own life, the policy being made payable to himself, “his executors, administrators or assigns,” he is the real beneficiary, and the proceeds, being liable to his debtors, cannot be claimed by his heirs as exempt. Rice v. Smith, 72 Miss. 42, 16 So. 417, 1894 Miss. LEXIS 91 (Miss. 1894).

4. Excess.

Creditors are entitled out of excess of insurance policy over $10,000 to amount paid for premiums on entire policy while insured insolvent, but not to whole amount of excess to satisfy their debts. Johnson v. Bacon, 92 Miss. 156, 45 So. 858, 1907 Miss. LEXIS 28 (Miss. 1907).

Creditors of a decedent who proceed by bill in equity against his wife and the sureties on her bond as administratrix of his estate, seeking a recovery for a devastavit in respect to so much of the proceeds of policies of insurance on his life, payable to her at his death, as exceeds the ten thousand dollars exempt by statute from liability for his debts, are entitled to no relief where the bill does not seek to subject the avails of the insurance for money illegally invested in the policies by the decedent. Jones v. Patty, 73 Miss. 179, 18 So. 794, 1895 Miss. LEXIS 98 (Miss. 1895).

§ 85-3-13. Proceeds of life insurance policy; payable to executor; limits.

The proceeds of a life insurance policy not exceeding Fifty Thousand Dollars ($50,000.00) payable to the executor, or administrator, of the insured, shall inure to the heirs or legatees, freed from all liability for the debts of the decedent, except premiums paid on the policy by any one other than the insured, for debts due for expenses of last illness and for burial; but if the life of the deceased be otherwise insured for the benefit of his heirs or legatees at the time of his death, and they shall collect the same, the sum collected shall be deducted from the Fifty Thousand Dollars ($50,000.00) and the excess of the latter only shall be exempt. No fee shall be paid or allowed by the court to the executor or administrator for handling same.

HISTORY: Codes, 1892, § 1965; 1906, § 2141; Hemingway’s 1917, § 1814; 1930, § 1757; 1942, § 309; Laws, 1908, ch. 175; Laws, 1922, ch. 186; Laws, 1994, ch. 621, § 2, eff from and after July 1, 1994.

Cross References —

Proceeds of life insurance policy not being subject to judicial process or assignment while in hands of company, see §83-7-5.

JUDICIAL DECISIONS

1. In general.

2. Proceeds exempted.

3. —Proceeds derived from disability provision.

4. Persons entitled to exempt proceeds.

5. Amount of exemption.

6. —As affected by other insurance to heirs and legatees.

7. Liability for debts; excepted debts.

8. Waiver of exemption.

1. In general.

Statutes granting exemptions to heirs of decedent should be liberally construed in favor of exemptees. Abernethy v. Savage, 159 Miss. 506, 132 So. 553, 1931 Miss. LEXIS 73 (Miss. 1931).

This section [Code 1942, § 309] enlarges exemption by securing to the heirs and legatees of a decedent the proceeds of insurance on his life not exceeding the amount named, even though the policy is payable to his executors or administrators. Coates v. Worthy, 72 Miss. 575, 17 So. 606, 1895 Miss. LEXIS 24 (Miss. 1895).

This section [Code 1942, § 309] applies in favor of the heirs or legatees of the insured, although he left no wife or children surviving him. Coates v. Worthy, 72 Miss. 575, 17 So. 606, 1895 Miss. LEXIS 24 (Miss. 1895).

2. Proceeds exempted.

The fact that the proceeds of federal war risk insurance and adjusted compensation due a deceased veteran’s estate were exempt property did not avail a surety on an administratrix’s bond to secure the proper administration of a veteran’s estate to escape liability on the ground that such property was no part of the estate to be administered and that therefore the sureties on her bond would not be liable for her misconduct in dissipating the estate, since the appointment and qualifications of an administrator were necessary to collect such funds. Hill v. Ouzts, 190 Miss. 341, 200 So. 254, 1941 Miss. LEXIS 54 (Miss. 1941).

Proceeds of war risk insurance are exempt property under this section [Code 1942, § 309]. Hill v. Ouzts, 190 Miss. 341, 200 So. 254, 1941 Miss. LEXIS 54 (Miss. 1941).

Adjusted compensation, though payable to the estate of the war veteran instead of a named beneficiary, is exempted from all debts of the decedent, and from the expenses of last illness and funeral. Hill v. Ouzts, 190 Miss. 341, 200 So. 254, 1941 Miss. LEXIS 54 (Miss. 1941).

Whole proceeds of policy including cash surrender value exempt and administrator entitled thereto. Dreyfus v. Barton, 98 Miss. 758, 54 So. 254, 1910 Miss. LEXIS 122 (Miss. 1910).

Life policy of $1,000 on decedent’s life was under this section [Code 1942, § 309] prima facie exempt property, enuring to the benefit of, and descending to the heirs, giving them right to sue thereon, and fact that there are other policies aggregating with it more than $5,000 is matter of defense. Equitable Life Assurance Soc. v. Hartfield, 87 Miss. 548, 40 So. 21, 1905 Miss. LEXIS 175 (Miss. 1905).

3. —Proceeds derived from disability provision.

Proceeds of judgment recovered under disability provision were not exempt from garnishment under law exempting proceeds of life insurance policy. Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450, 1929 Miss. LEXIS 13 (Miss. 1929).

4. Persons entitled to exempt proceeds.

Bankrupt may assert exemption any time before value actually paid to creditors, and where bankrupt listed policy as asset of estate, his legal representative after his death, could assert exemption. Dreyfus v. Barton, 98 Miss. 758, 54 So. 254, 1910 Miss. LEXIS 122 (Miss. 1910).

A nonresident may claim the proceeds of insurance as being exempt hereunder, notwithstanding provision [Code 1942, § 333] allowing exemption to residents of the state only. Borodofski v. Feld, 88 Miss. 31, 40 So. 816, 1906 Miss. LEXIS 138 (Miss. 1906).

Section [Code 1942, § 333] providing that the exemptions in this chapter shall be allowed in favor of residents of the state only cannot refer to vendees, heirs or legatees, but to the person to whom the exemption right is given. Borodofski v. Feld, 88 Miss. 31, 40 So. 816, 1906 Miss. LEXIS 138 (Miss. 1906).

5. Amount of exemption.

Each distributee entitled to exemption of only pro rata share of exempt life insurance. Magee v. Bank of Hattiesburg & Trust Co., 134 Miss. 126, 98 So. 541, 1923 Miss. LEXIS 243 (Miss. 1923).

6. —As affected by other insurance to heirs and legatees.

Where the heirs and legatees of a decedent are, either all or some of them, otherwise provided for by insurance than as marked out under this section [Code 1942, § 309], and the decedent should leave $5,000 insurance as marked out herein, this section [Code 1942, § 309] was not to provide cumulative exemptions, but should be so construed as to give each heir or legatee, together with what he otherwise might get, an additional amount, sufficient only to make the whole insurance received by him equal to what his ratable share of the $5,000 would be. Cozine v. Grimes, 76 Miss. 284, 76 Miss. 294, 24 So. 197, 1898 Miss. LEXIS 79 (Miss. 1898).

7. Liability for debts; excepted debts.

Amount of decedent’s insurance policies payable to administrator, up to amount of exemption to heirs, held not liable for proportionate share of attorney’s fee incurred in recovering proceeds of policies. Abernethy v. Savage, 159 Miss. 506, 132 So. 553, 1931 Miss. LEXIS 73 (Miss. 1931).

Debts excepted from exemption of proceeds of insurance should be paid out of other property if sufficient therefor. Delta Ins. & Realty Co. v. Benjamin, 122 Miss. 275, 84 So. 226, 1920 Miss. LEXIS 435 (Miss. 1920).

The funeral expenses of decedent and the administrator’s attorney’s fee are not debts of the decedent within the meaning of this section [Code 1942, § 309], but a claim for nursing decedent in his last illness is. Dobbs v. Chandler, 84 Miss. 372, 36 So. 388, 1904 Miss. LEXIS 43 (Miss. 1904).

The proceeds of a life insurance policy is not chargeable with a claim for nursing a decedent in his last illness, the same being a debt against him. Dobbs v. Chandler, 84 Miss. 372, 36 So. 388, 1904 Miss. LEXIS 43 (Miss. 1904).

An administrator may pay out of such proceeds the funeral expenses and an administrator’s attorney’s fee, the same not being debts against him. Dobbs v. Chandler, 84 Miss. 372, 36 So. 388, 1904 Miss. LEXIS 43 (Miss. 1904).

8. Waiver of exemption.

Bankrupt does not waive exemption by listing policies in his schedule. King v. Miles, 108 Miss. 732, 67 So. 182, 1914 Miss. LEXIS 266 (Miss. 1915).

§ 85-3-15. Proceeds of life insurance policy; unassigned policies.

The proceeds of all unassigned life insurance policies payable to the executor or administrator of the insured, upon the death of the insured, shall, whether exempt or not, be paid by such insurance company, to the executor or administrator of such insured deceased, and the receipt of such executor or administrator shall constitute a full and complete acquittance to such insurance company as against the claims of any and all persons claiming any rights under such policy of insurance.

HISTORY: Codes, 1930, § 1758; 1942, § 310; Laws, 1922, ch. 186.

Cross References —

Proceeds of life insurance policy not being subject to judicial process or assignment while in hands of company, see §83-7-5.

RESEARCH REFERENCES

ALR.

Testamentary direction for payment of debts or expense of administration as affecting life insurance proceeds payable to estate. 56 A.L.R.2d 865.

Who is “parent” entitled to proceeds of serviceman’s group life insurance, where there are no named beneficiaries, and no surviving widow or children, under 38 USCS § 770(a). 73 A.L.R. Fed. 135.

§ 85-3-17. Judgment for personal injury.

The proceeds of any judgment not exceeding Ten Thousand Dollars ($10,000.00) recovered by any person on account of personal injuries sustained, shall inure to the party or parties in whose favor such judgment may be rendered, free from all liabilities for the debts of the person injured.

HISTORY: Codes, Hemingway’s 1917, § 1815; 1930, § 1759; 1942, § 311; Laws, 1914, ch. 146.

Cross References —

Actions for injury producing death, see §§11-7-13 et seq.

RESEARCH REFERENCES

ALR.

Cost of hiring substitute or assistant during incapacity of injured party as item of damages in action for personal injury. 37 A.L.R.2d 364.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system. 51 A.L.R.5th 467.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages. 52 A.L.R.5th 1.

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 208-211, 233, 234.

JUDICIAL DECISIONS

1. In general.

2. Interpretation.

1. In general.

Evidentiary hearing was required in order to determine whether any proceeds from the settlement of a lawsuit for the wrongful death of the debtor’s mother were for personal injuries of the debtor, and thus able to be exempted under Miss. Code Ann. §85-3-17. In re Pittman, 2003 Bankr. LEXIS 518 (Bankr. N.D. Miss. Jan. 21, 2003).

Law exempting proceeds of judgment for personal injury held inapplicable as to recovery on disability provision of indemnity contract. Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450, 1929 Miss. LEXIS 13 (Miss. 1929).

Proceeds of judgment for personal injuries, not exceeding $10,000, inures to party recovering free of all liabilities for debts of injured person. Laurel Mills v. Ward, 137 Miss. 221, 102 So. 263, 1924 Miss. LEXIS 221 (Miss. 1924).

2. Interpretation.

Where: (1) the bankruptcy debtor claimed an exemption in the amount of $ 16,00.00 for the settlement proceeds from a lawsuit to which she was a party; (2) the trustee duly filed an objection to the debtor’s claimed exemption on the grounds that settlement proceeds were not allowable as exempt under Miss. Code Ann. §85-3-17 et seq.; and (3) the bankruptcy judge sustained the objection, the debtor’s appeal was dismissed. The bankruptcy judge concluded that permitting the exemption sought would represent an impermissible judicial broadening of the statute. Marshall v. Pongetti, 332 B.R. 284, 2005 U.S. Dist. LEXIS 29016 (N.D. Miss. 2005).

§ 85-3-19. Beneficiaries of deceased plaintiff take damages free from debts.

Whenever suit was begun in the name of the party injured, and such party shall die while said suit is pending in any court, and said suit shall be revived in the name of the administrator, any sum finally recovered in any such suit, if such deceased left surviving a husband or wife, or children or father or mother, to whom such judgment shall be distributed, as may be provided by law, such wife or children, or father or mother, or husband who may be entitled to recover or receive such moneys shall take same free from all liabilities for the debts of the deceased, and also free from all liabilities for the debts of the person or persons, as above entitled to receive them.

HISTORY: Codes, Hemingway’s 1917, § 1816; 1930, § 1760; 1942, § 312; Laws, 1914, ch. 146.

RESEARCH REFERENCES

ALR.

Cost of hiring substitute or assistant during incapacity of injured party as item of damages in action for personal injury. 37 A.L.R.2d 364.

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 208-211, 233, 234.

§ 85-3-21. Homestead exemption; land and buildings.

Every citizen of this state, male or female, being a householder 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 him, or her, but the quantity of land shall not exceed one hundred sixty (160) acres, nor the value thereof, inclusive of improvements, save as hereinafter provided, the sum of Seventy-five Thousand Dollars ($75,000.00); provided, however, that in determining this value, existing encumbrances on such land and buildings, including taxes and all other liens, shall first be deducted from the actual value of such land and buildings. But husband or wife, widower or widow, over sixty (60) years of age, who has been an exemptionist under this section, shall not be deprived of such exemption because of not residing therein.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 17(1); 1857, ch. 61, art. 281; 1871, § 2135; 1880, § 1248; 1892, § 1970; 1906, § 2146; Hemingway’s 1917, § 1821; 1930, § 1765; 1942, § 317; Laws, 1938, ch. 125; Laws, 1950, ch. 360; Laws, 1970, ch. 323, § 1; Laws, 1979, ch. 447, § 1; Laws, 1991, ch. 479, § 1, eff from and after July 1, 1991.

Cross References —

Power of legislature to regulate sale of homesteads, see MS Const Art. 4, § 94.

Tax exemptions of homestead, see §§27-33-1 et seq.

Descent of exempt property, see §§91-1-19 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Seven-year-old who is owner in fee simple title of property, whose mother does not claim homestead exemption on any other land in her name or in that of another child, and who occupies home with his mother, stepfather and younger brother may claim homestead exemption; such exemption is not limited to “head of family” so long as all statutory requisites are present. 1992 Miss. Op. Att'y Gen. 639.

A homestead exemption claimant who is a bona fide resident of Mississippi, who owns and is occupying a home legally assessed on the land roll, but is displaying a license plate from another state on a vehicle, should be removed from the homestead exemption roll until such time he or she submits proof of full compliance with the Mississippi road and bridge privilege tax laws. 2007 Miss. Op. Att'y Gen. 162, 2007 Miss. AG LEXIS 65.

RESEARCH REFERENCES

ALR.

Rights of surviving spouse and children in proceeds of sale of homestead in decedent’s estate. 6 A.L.R.2d 515.

Endowment policy as life insurance within exemption law. 30 A.L.R.2d 751.

Homestead exemption as extending to rentals derived from homestead property. 40 A.L.R.2d 897.

Estate or interest in real property to which a homestead claim may attach. 74 A.L.R.2d 1355.

Contractual waiver of after-acquired homestead exemption. 82 A.L.R.2d 982.

Effect of divorce on homestead. 84 A.L.R.2d 703.

Validity of contractual stipulation or provision waiving debtor’s exemption. 94 A.L.R.2d 967.

Choice of law as to exemption of property from execution. 100 A.L.R.3d 1235.

Recovery of damages for breach of contract to convey homestead where only one spouse signed contract. 5 A.L.R.4th 1310.

Lien of judgment on excess value of homestead. 41 A.L.R.4th 292.

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 251, 262.

40 Am. Jur. 2d, Homestead §§ 14 et seq.

13A Am. Jur. Pl & Pr Forms (Rev), Homestead, Forms 21 et seq. (preventing or setting aside forced sale of homestead).

13A Am. Jur. Pl & Pr Forms (Rev), Homestead, Forms 91, 92 (termination of homestead).

9A Am. Jur. Legal Forms 2d Homestead §§ 135: 11 et seq. (claim of homestead exemption).

9A Am. Jur. Legal Forms 2d Homestead §§ 135:73, 135:74 (declaration of abandonment of homestead).

9A Am. Jur. Legal Forms 2d Homestead §§ 135:91 et seq. (release or waiver of homestead).

13 Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:309 (waiver of homestead).

6 Am. Jur. Proof of Facts, Homestead, Proof No. 1 (existence of homestead exemption).

6 Am. Jur. Proof of Facts, Homestead, Proof No. 2 (termination of homestead exemption by removal from premises).

JUDICIAL DECISIONS

1. In general.

2. Establishment of homestead.

3. Separate tracts or lots.

4. Title or interest required.

5. Persons entitled.

6. Rights of survivors.

7. Sale or transfer.

8. Incumbrances on homestead.

9. Area of homestead.

10. Value of homestead.

11. Time for claiming exemption.

12. Estoppel to claim homestead.

13. Abandonment.

14. —Removal.

15. Mobile homes.

16. Waiver.

17. Relation to other statutes.

1. In general.

Homestead exemption provision is intended to protect entire family from misfortunes or imprudence of primary breadwinner, and is not dependent on breadwinner’s continued status as homeowner or on his or her intention to acquire another homestead with proceeds; it is intended to protect home from forced sale and to protect debtor’s property from creditors to provide source of revenue for support of breadwinner and family. In re Williamson, 844 F.2d 1166, 1988 U.S. App. LEXIS 6404 (5th Cir. Miss. 1988).

Husband may convey homestead to wife regardless of his intention toward creditors, because conveyance of homestead does not “defraud” creditors; homestead is exempt from creditors irrespective of conveyance. Joe T. Dehmer Distributors, Inc. v. Temple, 826 F.2d 1463, 1987 U.S. App. LEXIS 12486 (5th Cir. Miss. 1987).

Judgment based on division of community property is debt subject to homestead exemption like any other; however, judgment will defeat exemption to extent that judgment creditor shows it to be based on child support. Pickle v. Pickle, 476 So. 2d 32, 1985 Miss. LEXIS 2244 (Miss. 1985).

Judgments do not constitute a lien until enrolled; additionally, the homestead exemption in effect at the time judgments are enrolled is applicable in an action to foreclose judgment liens on property sold under a deed of trust, despite the fact that the amount of the homestead exemption is subsequently increased. Hall v. Panola County Bank, 412 So. 2d 238, 1982 Miss. LEXIS 1920 (Miss. 1982).

One does not own homestead rights in property unless he has some legal right to its possession. McGee v. Chickasaw County School Board, 239 Miss. 5, 120 So. 2d 778, 1960 Miss. LEXIS 260 (Miss. 1960).

A tort action does not come within the constitutional provision prohibiting impairment of existing contracts, and statute increasing the homestead exemption could properly be applied to judgment which was rendered after the passage of the act, even though the cause of action arose before the statute was passed. Odom v. Luehr, 226 Miss. 661, 85 So. 2d 218, 1956 Miss. LEXIS 446 (Miss. 1956).

Statutes granting homestead exemption are entitled to be liberally construed. Daily v. Gulfport, 212 Miss. 361, 54 So. 2d 485, 1951 Miss. LEXIS 457 (Miss. 1951); Biggs v. Roberts, 237 Miss. 406, 115 So. 2d 151, 1959 Miss. LEXIS 485 (Miss. 1959).

Neither the cases dealing only with urban property and those dealing with an urban tract and a rural tract as constituting together one homestead are applicable to a case where rural lands are involved. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

Exemption laws are construed liberally in favor of the owner of the property exempted. Bank of Myrtle v. Garrison, 183 Miss. 526, 184 So. 291, 1938 Miss. LEXIS 265 (Miss. 1938).

Homestead exemption would prevent declaration of lien on homestead land for debts which occupants themselves owed as well as debts of others. Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624, 1936 Miss. LEXIS 62 (Miss. 1936).

The homestead right being a favored one in law, whenever there is serious doubt as to whether the property is or is not a homestead, the doubt should be resolved in favor of the exemptionist, sustaining, instead of defeating, the estate, which is created by sound public policy. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

The homestead is the preservation of the family mansion and a certain quantity of land pertaining thereto to the debtor and his family as a place of residence; The policy of the law is that the family should enjoy the property as a home, contributing to their support, and if the debtor or some member of the family do not occupy the premises as a homestead, exemption ceases. Acker v. Trueland, 56 Miss. 30, 1878 Miss. LEXIS 37 (Miss. 1878).

The statute increasing exemptions is inapplicable as to existing creditors. Lessley v. Phipps, 49 Miss. 790, 1874 Miss. LEXIS 14 (Miss. 1874).

The term “land,” in this statute, embraces a leasehold estate. Johnson v. Richardson, 33 Miss. 462, 1857 Miss. LEXIS 62 (Miss. 1857); McGrath v. Sinclair, 55 Miss. 89, 1877 Miss. LEXIS 109 (Miss. 1877); King v. Sturges, 56 Miss. 606, 1879 Miss. LEXIS 173 (Miss. 1879).

2. Establishment of homestead.

Householder need not own, and thus need not sell, both land and buildings to qualify for exemption in proceeds so long as property sold was used for homestead purposes; and fact that householder and his family continued to live on land as lessees does not make householder ineligible for homestead exemption. In re Williamson, 844 F.2d 1166, 1988 U.S. App. LEXIS 6404 (5th Cir. Miss. 1988).

The language of Mississippi Code §85-3-25 indicates that a homestead declaration is voluntary and not mandatory. Shows v. Watkins, 485 So. 2d 288, 1986 Miss. LEXIS 2380 (Miss. 1986).

Income producing property under a sand and gravel lease is not ipso facto ineligible to be homestead. Shows v. Watkins, 485 So. 2d 288, 1986 Miss. LEXIS 2380 (Miss. 1986).

It is not absolutely necessary for the husband to acquire the property by inheritance in order to be entitled to claim it as a homestead. Biggs v. Roberts, 237 Miss. 406, 115 So. 2d 151, 1959 Miss. LEXIS 485 (Miss. 1959).

Where at the time the husband conveyed property to his wife the parties and their children were residing on the property and had been for a number of years, no new home had been acquired by the husband, and, after the husband had left the city, the wife and the children continued to occupy the property, the property was the homestead of the parties, and the husband had a right to convey to his wife the extent and value of the homestead regardless of his intention toward his creditors. Howell v. General Contract Corp., 229 Miss. 687, 91 So. 2d 831, 1957 Miss. LEXIS 315 (Miss. 1957).

The statute does not require the actual utilization of every acre of land in a tract before it can be claimed as a homestead. Daily v. Gulfport, 212 Miss. 361, 54 So. 2d 485, 1951 Miss. LEXIS 457 (Miss. 1951).

Occupancy coupled with residence, citizenship, and status of being head of family perfects right so that it cannot be defeated because children remained at school when father removed. Roberts v. Thomas, 94 Miss. 219, 48 So. 408, 1908 Miss. LEXIS 46 (Miss. 1908).

Land, always occupied as homestead by claimant except for about 6 weeks when she lived with her husband on his father’s place, was her homestead, although after separating from husband she rented part of land for one year and stayed elsewhere at night but kept one room of the house and a horse and other animals on the land. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

A decree in equity adjudging a conveyance from a husband to his wife, fraudulent as to the creditors of the husband, and directing a sale of the land to pay the debts, does not preclude the husband from moving upon the land with his family and making it his homestead; and if he make it his homestead after the rendition of the decree, it will cease to be liable to sale thereunder. Dulion v. Harkness, 80 Miss. 8, 31 So. 416, 1902 Miss. LEXIS 216 (Miss. 1902).

If one has two tracts of land, either of which he might claim as his homestead, and convey one, he will be held to have selected the other as his homestead. Rutherford v. Jamieson, 65 Miss. 219, 3 So. 412, 1887 Miss. LEXIS 41 (Miss. 1887).

A tenancy at will of a forty-acre tract containing the dwelling, is sufficient to carry the exemption of a detached forty acres owned in fee and cultivated. King v. Sturges, 56 Miss. 606, 1879 Miss. LEXIS 173 (Miss. 1879); Parisot v. Tucker, 65 Miss. 439, 4 So. 113, 1888 Miss. LEXIS 14 (Miss. 1888).

Actual residence and occupation of the land as a home by the family is essential to give it the character of a homestead; after it has acquired that status, literal or actual residence is not required. Campbell v. Adair, 45 Miss. 170, 1871 Miss. LEXIS 64 (Miss. 1871); Hand v. Winn, 52 Miss. 784, 1876 Miss. LEXIS 292 (Miss. 1876).

3. Separate tracts or lots.

In an action to determine the validity of a deed to property alleged to be homestead in which grantor’s wife did not join, where the evidence showed that the tract in controversy and a non-contiguous tract upon which grantor’s dwelling was located were both used for timber, it was error for the chancellor to hold that the land in controversy was not homestead property, even though he found that the value of the other tract, upon which the dwelling house was situated, was in excess of the valuation mentioned in the homestead statute. Hendry v. Hendry, 300 So. 2d 147, 1974 Miss. LEXIS 1614 (Miss. 1974).

Where lands were not contiguous because a road separated them, such a separation did not necessarily defeat a homestead claim. Daily v. Gulfport, 212 Miss. 361, 54 So. 2d 485, 1951 Miss. LEXIS 457 (Miss. 1951).

Where a decedent resided on one tract of land and used this tract with another as a farm unit which consisted of less than 160 acres, the widow was entitled to claim both parcels of land as a homestead although they were not contiguous. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

Plaintiff claiming city residence as homestead could not also claim 80-acre tract two and one-half miles from city residence, although value of both did not exceed $3,000. Nye v. Winborn, 120 Miss. 1, 81 So. 644, 1919 Miss. LEXIS 57 (Miss. 1919).

Person owning and residing on four acre lot and owning and cultivating an adjoining parcel, separated from the former parcel by a railroad, could claim both as homestead where both did not exceed prescribed area and value for homesteads. Parisot v. Tucker, 65 Miss. 439, 4 So. 113, 1888 Miss. LEXIS 14 (Miss. 1888).

4. Title or interest required.

Householder’s interest in property under land sale contract is sufficient for eligibility for homestead protection under Miss. Code §85-3-21. In re Williamson, 844 F.2d 1166, 1988 U.S. App. LEXIS 6404 (5th Cir. Miss. 1988).

Mere occupancy of land under a deed which confers no title will not support a claim for homestead exemption; Nor can a widow derive any homestead right from her husband who, with her, occupied at his death as tenant at will the land which he conveyed to others. Clark v. Edwards, 180 Miss. 97, 177 So. 361, 1937 Miss. LEXIS 120 (Miss. 1937), overruled, Dogan v. Cooley, 184 Miss. 106, 185 So. 783, 1939 Miss. LEXIS 40 (Miss. 1939).

The statute providing for the homestead exemption for land “owned and occupied by the debtor as a residence,” the right must in all cases be founded on ownership or some assignable interest in the land. Clark v. Edwards, 180 Miss. 97, 177 So. 361, 1937 Miss. LEXIS 120 (Miss. 1937), overruled, Dogan v. Cooley, 184 Miss. 106, 185 So. 783, 1939 Miss. LEXIS 40 (Miss. 1939).

The homestead exemption granted by statute is not on any particular interest in land, and interest need not be ownership in fee simple, and all that is necessary is that the exemptionist have an assignable interest in the land. Clark v. Edwards, 180 Miss. 97, 177 So. 361, 1937 Miss. LEXIS 120 (Miss. 1937), overruled, Dogan v. Cooley, 184 Miss. 106, 185 So. 783, 1939 Miss. LEXIS 40 (Miss. 1939).

Husband or wife must have some kind of ownership in land before homestead claim can arise. Stuart v. Kennedy & Co., 145 Miss. 728, 110 So. 847, 1927 Miss. LEXIS 126 (Miss. 1927).

Property must be owned and actually occupied by party entitled to exemption. Chrismand v. Mauldin, 130 Miss. 259, 94 So. 1, 1922 Miss. LEXIS 200 (Miss. 1922).

The homestead right is founded on ownership of some assignable interest in the land. Berry v. Dobson, 68 Miss. 483, 10 So. 45, 1891 Miss. LEXIS 34 (Miss. 1891); Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624, 1936 Miss. LEXIS 62 (Miss. 1936).

5. Persons entitled.

Joint debtors were not permitted to separately claim the $75,000 homestead exemption, effectively allowing them to exempt equity of $150,000, because the homestead exemption did not provide for more than one homestead exemption to be applied to a single residence, regardless of how many individual debtors resided therein. In re Pace, 521 B.R. 124, 2014 Bankr. LEXIS 4341 (Bankr. N.D. Miss. 2014).

The purpose of the amendment to §85-3-21 deleting the language “and having a family” from the requirements necessary for a person to claim the homestead exemption was to allow single persons to claim the exemption, the same as persons with families. Matter of Memorial Hosp. v. Franzke (In re Estate of Franzke), 634 So. 2d 117, 1994 Miss. LEXIS 132 (Miss. 1994).

Householders are now eligible for homestead exemption even if single. Pickle v. Pickle, 476 So. 2d 32, 1985 Miss. LEXIS 2244 (Miss. 1985).

Where the former husband lost his right to occupy the marital home under a divorce decree giving the wife the right to exclusive use of the home, the husband lost his homestead rights under Code 1972 §§27-33-3 &85-3-21, so that the husband thus held no homestead exemption on the property which could be used to defeat the former wife’s right to partition under Code 1972 §11-21-3; the existence of homestead rights in the former wife was irrelevant, since she waived them by bringing a suit for partition sale. Blackmon v. Blackmon, 350 So. 2d 44, 1977 Miss. LEXIS 2207 (Miss. 1977).

Signers of trust deed who were married and living upon land conveyed by such deed as a homestead held entitled to homestead exemption where their spouses did not sign deed. Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624, 1936 Miss. LEXIS 62 (Miss. 1936).

“Householder,” in statute allowing homestead exemption to debtor householder under sixty years, means a person who has a family whom he keeps together and provides for, and of which he is the head and master. Moore v. Sykes' Estate, 167 Miss. 212, 149 So. 789, 1933 Miss. LEXIS 128 (Miss. 1933).

One, to whom a part of land held in common had been allotted by partition, subject to debts owed by him to his cotenants, could claim homestead exemption therein as against his former cotenants. Woods v. Bowles, 92 Miss. 843, 46 So. 414 (Miss. 1908); Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624, 1936 Miss. LEXIS 62 (Miss. 1936).

Only a person who is a citizen and resident of this state, as well as a householder having a family, is entitled to homestead exemption. Vignaud v. Dean, 77 Miss. 860, 27 So. 881, 1900 Miss. LEXIS 37 (Miss. 1900).

An aged widower living with his married son of middle age, in a house built and controlled by the same, on land of the father who receives no rent and contributes nothing to the support of the family beyond his own maintenance, and who is under no moral and legal duty to contribute to the support of the family, is neither a “householder” nor the head of a family so as to entitle him to the homestead exemption under this section [Code 1942, § 317]. Powers v. Sample, 72 Miss. 187, 16 So. 293, 1894 Miss. LEXIS 77 (Miss. 1894).

Tenant at will of land containing dwelling is entitled to homestead exemption. King v. Sturges, 56 Miss. 606, 1879 Miss. LEXIS 173 (Miss. 1879); Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624, 1936 Miss. LEXIS 62 (Miss. 1936).

A tenant in common, occupying with the consent of his cotenants, is entitled to the exemption. McGrath v. Sinclair, 55 Miss. 89, 1877 Miss. LEXIS 109 (Miss. 1877).

One who shelters but does not support an informally adopted daughter and her husband, is not entitled to the exemption. Hill v. Franklin, 54 Miss. 632, 1877 Miss. LEXIS 62 (Miss. 1877).

An unmarried man is not the head of a family because his adult son, who is able-bodied and capable of earning a support, lives with him. Hill v. Franklin, 54 Miss. 632, 1877 Miss. LEXIS 62 (Miss. 1877); Cox v. Martin, 75 Miss. 229, 21 So. 611, 1897 Miss. LEXIS 82 (Miss. 1897).

The wife is deemed a “householder, and having a family,” under the statute. Partee v. Stewart, 50 Miss. 717, 1874 Miss. LEXIS 110 (Miss. 1874).

One becoming the head of a family after judgment and levy, but before sale, is entitled to the exemption. Trotter v. Dobbs, 38 Miss. 198, 1859 Miss. LEXIS 105 (Miss. 1859), limited, Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 So. 227, 1913 Miss. LEXIS 259 (Miss. 1913); Irwin v. Lewis, 50 Miss. 363, 1874 Miss. LEXIS 67 (Miss. 1874); Letchford v. Cary, 52 Miss. 791, 1876 Miss. LEXIS 294 (Miss. 1876); Jones v. Hart, 62 Miss. 13, 1884 Miss. LEXIS 5 (Miss. 1884).

6. Rights of survivors.

Trial court did not err in granting an executrix summary judgment and in determining that the claim of the Mississippi Division of Medicaid was not valid against a decedent’s property because the decedent predeceased his children and a grandchild to whom he devised all of his property, and pursuant to the unambiguous language of Miss. Code Ann. §§85-3-21,91-1-19, and91-1-21, coupled with case law, the homestead, with its exemption, passed from the decedent to his children and grandchildren free of his debts; thus, Medicaid was not entitled to pursue a claim against the exempted property as it was not a part of the estate. State v. Stinson (In re Estate of Darby), 68 So.3d 702, 2011 Miss. App. LEXIS 96 (Miss. Ct. App.), cert. denied, 69 So.3d 767, 2011 Miss. LEXIS 419 (Miss. 2011).

Judgment creditor of husband and wife who together owned property as tenants by the entirety could levy execution and sell that portion of homestead property which exceeded value of statutory homestead exemption which had vested in wife following husband’s death; Section 91-1-23 was not applicable to debt for which surviving spouse was jointly and severally liable. In re Osborne, 120 B.R. 64, 1990 Bankr. LEXIS 2184 (Bankr. N.D. Miss. 1990).

It is clearly the purpose of the statute to give the surviving husband or wife, who has been an exemptionist, the benefit of the exemption if the survivor was over sixty years of age at the time of the partner’s death. Bank of Myrtle v. Garrison, 183 Miss. 526, 184 So. 291, 1938 Miss. LEXIS 265 (Miss. 1938).

Amendment providing husband or wife, widow or widower, over 60 years of age, should not be deprived of exemptions, held to preserve only existing exemptions. Kimbrough v. Powell, 143 Miss. 498, 108 So. 498, 1926 Miss. LEXIS 286 (Miss. 1926).

Widow over 60 years of age when husband died, with no one dependent on either for support, had no exemption rights in homestead preserved to her because she was over 60 years of age. Kimbrough v. Powell, 143 Miss. 498, 108 So. 498, 1926 Miss. LEXIS 286 (Miss. 1926).

Court could not order sale of homestead of widow more than 60 years of age who had moved from premises, but was being supported in part from products. Wright v. Coleman, 137 Miss. 699, 102 So. 774, 1925 Miss. LEXIS 21 (Miss. 1925).

Laws 1914, c 225, extending homestead exemption to widow or widower over 60 years of age who had been exemptionist regardless of having a family or occupying the homestead, is not unconstitutional as impairing the obligation of a contract made before the enactment of such statute, where property was exempt at time contract was made and also at time statute was passed. McCreight v. W. W. Scales & Co., 134 Miss. 303, 99 So. 257, 1924 Miss. LEXIS 291 (Miss. 1924).

Surviving widow entitled to occupy homestead and heirs cannot have partition thereof. Dickerson v. Leslie, 94 Miss. 627, 47 So. 659, 1909 Miss. LEXIS 319 (Miss. 1909).

7. Sale or transfer.

Where debtor had title to homestead property, actually occupied it, and had citizenship status at place of homestead, fact that debtor had entered agreement prior to bankruptcy to sell his homestead did not of itself deprive debtor of right to claim exemption in proceeds from sale of his homestead. In re Williamson, 49 B.R. 675, 1985 Bankr. LEXIS 6761 (Bankr. S.D. Miss. 1985).

Widow could not have homestead property sold to satisfy her widow’s allowance and property was not subject to partition or sale during widowhood without her consent. Mills v. Mills, 279 So. 2d 917, 1973 Miss. LEXIS 1495 (Miss. 1973).

Widow is not entitled to have homestead property sold and at the same time retain her homestead rights. Mills v. Mills, 279 So. 2d 917, 1973 Miss. LEXIS 1495 (Miss. 1973).

That property is occupied by the judgment debtor’s mother as a homestead does not preclude a sale of his undivided interest therein to satisfy the judgment. Jones v. Jones, 249 Miss. 322, 161 So. 2d 640, 1964 Miss. LEXIS 393 (Miss. 1964).

Under the statute, the proceeds of a voluntary sale of a homestead are exempt under all circumstances, regardless of the vendor’s continuing to be a householder, or his acquiring another homestead, or the intent with which he keeps the proceeds. Davis v. Lammons, 246 Miss. 624, 151 So. 2d 907, 1963 Miss. LEXIS 487 (Miss. 1963).

Although wife did not sign timber deed, grantor and wife could not set up homestead claim against grantee in manner different from that prescribed by statute. Robert G. Bruce Co. v. Spears, 181 Miss. 786, 181 So. 333, 1938 Miss. LEXIS 119 (Miss. 1938).

Where wife did not sign timber deed executed by husband, court, on suit by grantee, could not allot homestead in absence of declaration by grantor, but should have appointed commissioner to make allotment before adjudicating rights of parties. Robert G. Bruce Co. v. Spears, 181 Miss. 786, 181 So. 333, 1938 Miss. LEXIS 119 (Miss. 1938).

Transfer of part of homestead for purpose of defeating execution on crops, not invalid as owner’s motive was immaterial. Lindsey v. Holly, 105 Miss. 740, 63 So. 222, 1913 Miss. LEXIS 257 (Miss. 1913).

Conveyance of homestead by husband without wife’s joinder conveys no estate whatever. McKenzie v. Shows, 70 Miss. 388, 12 So. 336, 1892 Miss. LEXIS 119 (Miss. 1892).

An insolvent debtor, as against a judgment creditor, has a right to convey his homestead to another in consideration for a conveyance to his wife of real estate, not exempt, and such real estate is not liable for his debts. Airey v. Buchanan, 64 Miss. 181, 1 So. 101, 1886 Miss. LEXIS 37 (Miss. 1886).

There is no provision in the Code of 1880 which precludes the owner from devising his homestead as any other land, and only in case of his dying intestate can his widow assert her rights of survivorship. Osburn v. Sims, 62 Miss. 429, 1884 Miss. LEXIS 98 (Miss. 1884).

The fraudulent conveyance of the homestead does not defeat the exemption. Edmonson & Winn v. Meacham, 50 Miss. 34, 1874 Miss. LEXIS 20 (Miss. 1874).

8. Incumbrances on homestead.

Bank was entitled to foreclose deed of trust against homestead property for advances made to the husband, acting alone and without his wife’s knowledge, which were additional to the original indebtedness secured by the deed of trust contract where the contract contained a “dragnet clause” which clearly and unambiguously provided that its purpose was to “secure all loans and advances which Beneficiary has made or may hereafter make to the Grantor, or any of them”; nor did the fact that the husband had pledged certain cattle as additional security for the advances, which were missing when the bank sought to replevy them, amount to a waiver on the part of the bank of the security granted it by the deed of trust. Newton County Bank, Louin Branch Office v. Jones, 299 So. 2d 215, 1974 Miss. LEXIS 1592 (Miss. 1974).

Deed of trust, securing purchase-money of homestead, is valid without wife’s signature. Stuart v. Kennedy & Co., 145 Miss. 728, 110 So. 847, 1927 Miss. LEXIS 126 (Miss. 1927).

Option to purchase is a covenant running with land enforceable against grantor after he marries and occupies land as homestead. Minor v. Interstate Gravel Co., 130 Miss. 553, 94 So. 3, 1922 Miss. LEXIS 201 (Miss. 1922).

Prior incumbrances or covenants running with land defeat homestead exemption subsequently arising. Minor v. Interstate Gravel Co., 130 Miss. 553, 94 So. 3, 1922 Miss. LEXIS 201 (Miss. 1922).

Exemption of homestead acquired by occupation after execution, but before sale, does not confer right to convey land not his homestead, free from lien. Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

Divorced wife of owner who received portion of wild land by decree in divorce cannot set up homestead right against purchaser under prior trust deed made by husband. Mounger v. Gandy, 110 Miss. 133, 69 So. 817, 1915 Miss. LEXIS 13 (Miss. 1915).

Husband and wife may execute valid mortgage on after-acquired property although used as homestead. Adkinson & Bacot Co. v. Varnado, 91 Miss. 825, 47 So. 113, 1907 Miss. LEXIS 215 (Miss. 1908).

Growing trees being a part of realty, a conveyance by a husband of all the merchantable timber on his homestead with indefinite time for its removal, is an incumbrance of the homestead and void if the wife does not join. McKenzie v. Shows, 70 Miss. 388, 12 So. 336, 1892 Miss. LEXIS 119 (Miss. 1892).

Where an unmarried man executes a deed of trust on his land to secure a debt due by him, and afterwards marries and occupies the land as a homestead, and before the bar of the statute of limitations attaches, makes a new promise in writing to pay the debt, a new period is thereby given for both the debt and security to run, and such security is paramount to his homestead claim. Hambrick v. Jones, 64 Miss. 240, 8 So. 176, 1886 Miss. LEXIS 53 (Miss. 1886).

9. Area of homestead.

A rural homesteader should ordinarily be entitled to as much as 160 acres for homestead purposes if such an amount of his land is so located as to be truly susceptible of being devoted to homestead purposes as a unit, and without giving the homestead laws an unreasonable application for the protection of the homesteader. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

Householder claiming exemption of rural land sought to be subjected to payment of his debts held limited to 160 acres. Clegg v. Federal Reserve Bank, 169 Miss. 578, 153 So. 812, 1934 Miss. LEXIS 77 (Miss. 1934).

Decree directing proceeds of sale of deceased’s interest in common estate in excess of 160-acre homestead be paid to administrator for benefit of creditors held correct. Kimbrough v. Powell, 143 Miss. 498, 108 So. 498, 1926 Miss. LEXIS 286 (Miss. 1926).

10. Value of homestead.

Where debtor in bankruptcy failed to specify particular acreage constituting his homestead at time he claimed exemption, court assumed fungibility of all 854 acres comprising debtor’s plantation with debtor’s equity evenly distributed throughout, and thus pro-rated his interest in 160 acres claimed according to his total equity interest in entire tract. In re Williamson, 844 F.2d 1166, 1988 U.S. App. LEXIS 6404 (5th Cir. Miss. 1988).

If wife’s interest in homestead exceeds $30,000, she may keep entire value of that interest from husband’s creditors. Joe T. Dehmer Distributors, Inc. v. Temple, 826 F.2d 1463, 1987 U.S. App. LEXIS 12486 (5th Cir. Miss. 1987).

The question of value has no place in the consideration of the rights of a surviving widow to use and occupancy of the homestead, her rights being absolute so long as she remains a widow; the limitation on the value of the homestead that is exempt from creditors’ demands, set by §85-3-21, is not applicable. Stockett v. Stockett, 337 So. 2d 1237, 1976 Miss. LEXIS 1603 (Miss. 1976).

The value of the homestead is not material in passing on the rights of the surviving widow, since it was never the intention of the legislature that 160 acres of land should be reduced in quantity, save in one instance, and that is where the rights of the creditors are involved. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

The exemption covered the land to the extent of $3,000 in value, regardless of the exemptioner’s interest therein and without the deduction of existing encumbrances on the land. Clark v. Edwards, 180 Miss. 97, 177 So. 361, 1937 Miss. LEXIS 120 (Miss. 1937), overruled, Dogan v. Cooley, 184 Miss. 106, 185 So. 783, 1939 Miss. LEXIS 40 (Miss. 1939).

Householder claiming exemption of rural land sought to be subjected to payment of his debts held limited to $3,000 in value. Clegg v. Federal Reserve Bank, 169 Miss. 578, 153 So. 812, 1934 Miss. LEXIS 77 (Miss. 1934).

A debtor who asserts a homestead exemption in an estate in common which exceeds one hundred sixty acres in quantity has no floating claim to an exemption of his interest in the entire estate; his exemption in such estate is limited to a homestead of the proper quantity, as well as value, and if the value of the debtor’s interest in the one hundred sixty acres constituting the homestead happens to be worth less than three thousand dollars, this fact does not entitle him to an exemption in the remainder of the estate. Kimbrough v. Powell, 143 Miss. 498, 108 So. 498, 1926 Miss. LEXIS 286 (Miss. 1926).

11. Time for claiming exemption.

Homestead exemption as to land sold under execution could not be claimed on appeal in a subsequent suit where it appeared that no such claim was asserted at the time of the sale. Clark v. Carpenter, 201 Miss. 436, 29 So. 2d 215, 1947 Miss. LEXIS 404 (Miss. 1947).

Judgment debtor may claim exemption any time before sale. Woods v. Bowles, 92 Miss. 843, 46 So. 414 (Miss. 1908).

12. Estoppel to claim homestead.

Debtor in bankruptcy claiming homestead exemption did not waive his homestead rights in proceeds of sale of homestead property by not making his claim until after sale was consummated. In re Williamson, 844 F.2d 1166, 1988 U.S. App. LEXIS 6404 (5th Cir. Miss. 1988).

An exemptionist who fails to assert his exemption in a chancery proceeding fully adjudicating his right cannot afterwards claim it against a purchaser under the decree. Henderson v. Still, 61 Miss. 391, 1883 Miss. LEXIS 143 (Miss. 1883).

13. Abandonment.

One may claim homestead exemption only in property owned and occupied as residence, and husband abandoned homestead rights when he voluntarily left property without intent to return. Joe T. Dehmer Distributors, Inc. v. Temple, 826 F.2d 1463, 1987 U.S. App. LEXIS 12486 (5th Cir. Miss. 1987).

75-year old homeowner was not divested of his rights to claim homestead exemption by virtue of his conviction for murder and sentence of life imprisonment, despite claim that he was not entitled to the exemption because he had no legal right to occupy the property and that by voluntarily murdering victim he had abandoned any claim to homestead that he would otherwise have. Roberts v. Grisham, 493 So. 2d 940, 1986 Miss. LEXIS 2588 (Miss. 1986).

Where husband at time of separation from wife removed from their homestead without intention to return, he thereby abandoned his and his wife’s homestead rights therein, though wife remained in possession under color of a deed given in settlement of claims for support. Lewis v. Ladner, 177 Miss. 473, 168 So. 281, 172 So. 312, 1936 Miss. LEXIS 230 (Miss. 1936).

That wife remained in occupancy of homestead abandoned by husband held immaterial as to existence of homestead rights, where by agreeing to a marital separation she consented to his removal. Lewis v. Ladner, 177 Miss. 473, 168 So. 281, 172 So. 312, 1936 Miss. LEXIS 230 (Miss. 1936).

Confinement in jail does not constitute abandonment of homestead. Lindsey v. Holly, 105 Miss. 740, 63 So. 222, 1913 Miss. LEXIS 257 (Miss. 1913).

Moving from homestead to conduct boarding house in near-by town with borrowed money secured by mortgage on homestead was abandonment thereof, although owner intended to return if she failed to pay for place moved to. Bennett Bros. v. Dempsey, 94 Miss. 406, 48 So. 901, 1908 Miss. LEXIS 55 (Miss. 1908).

Where one abandons a rural homestead and acquires another in town, but abandons the latter, intending as soon as practicable to reoccupy the country home, and makes preparations therefor, but is prevented by protracted sickness, which after the date upon which he expected to re-enter ends in death, the country place becomes revested with its homestead character and is exempt. Ross v. Porter, 72 Miss. 361, 16 So. 906, 1894 Miss. LEXIS 122 (Miss. 1894).

So long as the wife and family occupy the premises, though abandoned by the husband, the exemption continues until he acquire another homestead. Thoms v. Thoms, 45 Miss. 263, 1871 Miss. LEXIS 74 (Miss. 1871).

14. —Removal.

Owner of country homestead may purchase house in village, move family thereto to educate children, qualify as elector and hold a municipal office without forfeiting right to claim country home as exempt, if he keep actual possession in person or by some member of his family, cultivates it, continues to claim it as homestead and intends to return as soon as object of moving to village accomplished. Gilmore v. Brown, 93 Miss. 63, 46 So. 840, 1908 Miss. LEXIS 111 (Miss. 1908).

Where a husband and wife temporarily remove from their homestead to cultivate other lands for a year or two, leaving their children in occupancy of the home, intending themselves all the time to return to it, they have not parted with its possession. Culp v. Wooten, 79 Miss. 503, 31 So. 1, 1901 Miss. LEXIS 83 (Miss. 1901).

Both the intent to reoccupy speedily and cause of removal must exist to protect the homestead. Moore v. Bradford, 70 Miss. 70, 11 So. 630, 1892 Miss. LEXIS 60 (Miss. 1892).

Ceasing to reside on a homestead renders it liable for debts unless the removal be temporary, by reason of casualty or necessity, and with the purpose of speedily reoccupying as soon as the cause is removed. Moore v. Bradford, 70 Miss. 70, 11 So. 630, 1892 Miss. LEXIS 60 (Miss. 1892).

Where a husband and family reside on a certain place belonging to him as a homestead, then move temporarily to a place belonging to his wife with the purpose of returning to his homestead, and while thus residing on the wife’s place the husband conveyed away his place without the wife joining in the deed, after the death of the husband his widow and minor children cannot maintain a bill claiming homestead in the land conveyed by him. Majors v. Majors, 58 Miss. 806, 1881 Miss. LEXIS 39 (Miss. 1881).

15. Mobile homes.

16. Waiver.

Executrix did not waive the homestead exemption by entering into a contractual relationship with the Mississippi Division of Medicaid on behalf of a decedent because the record did not support the idea that the decedent had any knowledge of the benefits a homestead exemption provided, nor that he intentionally waived his right to the benefit of that exemption since the contract did not provide any information pertaining to, or even mention, the significance of any exemption; there was no evidence of the decedent’s intent to waive any of his rights because by entering into the contract, the decedent merely acknowledged Medicaid as a creditor of his estate, which estate had no property against which Medicaid could recover. State v. Stinson (In re Estate of Darby), 68 So.3d 702, 2011 Miss. App. LEXIS 96 (Miss. Ct. App.), cert. denied, 69 So.3d 767, 2011 Miss. LEXIS 419 (Miss. 2011).

A debtor, who did not own the land on which her mobile home was located, could not claim the mobile home as exempt homestead property. Cobbins v. Henderson (In re Cobbins), 227 F.3d 302, 2000 U.S. App. LEXIS 23862 (5th Cir. Miss. 2000).

17. Relation to other statutes.

Section relation to partition of land prohibits the partition of spousal homestead property by chancery decree because the phrase “homestead property exempt from execution” is not intended to bring specific limitations on creditors’ rights to other statutes. Therefore, a chancery court could not enter a partition of land owned by spouses as joint tenants with a right of survivorship. Noone v. Noone, 127 So.3d 193, 2013 Miss. LEXIS 647 (Miss. 2013).

§ 85-3-23. Homestead exemption; land and buildings; insurance proceeds; personal property.

Every citizen of this state, male or female, being a householder 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, also the proceeds of any insurance, fire or otherwise, on any such buildings destroyed or damaged by fire, tornado or otherwise, not to exceed in value, save as hereinafter provided, Seventy-five Thousand Dollars ($75,000.00), and personal property to be selected by him or her not to exceed in value Two Hundred Fifty Dollars ($250.00) or the articles specified as exempt to the head of a family; provided, however, that no sum or amount due, or to become due such person, nor any part thereof, for or on account of wages, salaries or commissions, shall in any proceedings be selected or claimed as exempt under this section. But husband or wife, widower or widow, over sixty (60) years of age, who has been an exemptionist under this section, shall not be deprived of such exemption because of not residing therein.

HISTORY: Codes, 1871, § 2140; 1880, § 1249; 1892, § 1971; 1906, § 2147; Hemingway’s 1917, § 1822; 1930, § 1766; 1942, § 318, Laws, 1926, ch. 159; Laws, 1931, ch. 18; Laws, 1970, ch. 323, § 2; Laws, 1979, ch. 447, § 2; Laws, 1991, ch. 479, § 2, eff from and after July 1, 1991.

Cross References —

Power of legislature to regulate sale of homesteads, see MS Const Art. 4, § 94.

RESEARCH REFERENCES

ALR.

Interest of vendee under executory contract as subject to execution, judgment lien, or attachment. 1 A.L.R.2d 727.

Exemption of insurance proceeds as available to assignee of policy. 1 A.L.R.2d 1031.

Rights of surviving spouse and children in proceeds of sale of homestead in decedent’s estate. 6 A.L.R.2d 515.

Homestead exemption as extending to rentals derived from homestead property. 40 A.L.R.2d 897.

Estate or interest in real property to which a homestead claim may attach. 74 A.L.R.2d 1355.

Effect of divorce on homestead. 84 A.L.R.2d 703.

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 251, 252.

9A Am. Jur. Legal Forms 2d, Homestead §§ 135:11 et seq. (claim of homestead exemption).

JUDICIAL DECISIONS

1. In general.

2. Homestead exemption.

3. —Separate tracts or lots.

4. —Residence and occupancy.

5. —Buildings.

6. Selection of homestead.

7. Persons entitled.

8. Sale or transfer of homestead.

9. Mortgage on homestead.

10. Amount of homestead exemption.

11. Selection of personal property as exempt.

12. —Other statutory exemptions in lieu.

13. Sale or transfer of personal property.

14. Rights of survivors.

1. In general.

Garnishment constitutes “attachment” within statute exempting from attachment. First Nat'l Bank v. Ellison, 135 Miss. 42, 99 So. 573, 1924 Miss. LEXIS 20 (Miss. 1924).

This section [Code 1942, § 318] held to include unincorporated urban districts. Harris Ice Cream Co. v. Hartsock, 127 Miss. 271, 90 So. 7, 1921 Miss. LEXIS 222 (Miss. 1921).

2. Homestead exemption.

Creditor’s argument that Miss. Code §85-3-23 did not apply to debtors because a deed of trust was issued to secure a purchase money lien on the property and the homestead rights had not yet attached was without merit where the debtors had owned the property and had been occupying the property for some time prior to the time that the husband signed the deed of trust. Rhymes v. Countrywide Home Loans, Inc. (In re Rhymes), 2008 Bankr. LEXIS 779 (Bankr. S.D. Miss. Mar. 14, 2008).

One claiming city residence as homestead may not also claim 80-acre tract about two and one-half miles from city residence, although value of both may not exceed exemption allowed. Nye v. Winborn, 120 Miss. 1, 81 So. 644, 1919 Miss. LEXIS 57 (Miss. 1919).

3. —Separate tracts or lots.

The homestead may consist of a tract partly in city and partly in country. Fitz Gerald v. Rees, 67 Miss. 473, 7 So. 341 (Miss. 1889).

Where lots separate from the residence are leased to one not a servant, they are not exempt. Rhyne v. Guevara, 67 Miss. 139, 6 So. 736, 1889 Miss. LEXIS 21 (Miss. 1889).

A tract separated from the residence lot by a railroad depot and right of way may be part of the homestead. Parisot v. Tucker, 65 Miss. 439, 4 So. 113, 1888 Miss. LEXIS 14 (Miss. 1888).

The homestead may include lots separated from the residence by a public street where used in connection with it. Acker v. Trueland, 56 Miss. 30, 1878 Miss. LEXIS 37 (Miss. 1878).

4. —Residence and occupancy.

One cannot claim as a homestead a tract owned by him on the ground that he is living on an adjoining tract in which he has no assignable interest. Davis v. Davidor, 200 Miss. 657, 27 So. 2d 371, 1946 Miss. LEXIS 335 (Miss. 1946).

Where a husband and his family slept and had their breakfast on property which they rented and which was noncontiguous to land owned by him, and on which they maintained a restaurant, in which they daily had their dinners and suppers and during an interval when, because of various transfers, the title to the restaurant property was in third parties, the husband executed a deed of trust on the restaurant property, which property was afterwards reconveyed to him, such property was not their homestead at the time the deed of trust was given by the husband. Meyers v. American Oil Co., 192 Miss. 180, 5 So. 2d 218, 1941 Miss. LEXIS 29 (Miss. 1941), limited, Pettis v. Brown, 203 Miss. 292, 33 So. 2d 809, 1948 Miss. LEXIS 267 (Miss. 1948).

Occupancy coupled with residence, citizenship, and status of being head of family perfects right so that it cannot be defeated because children remained at school when father removed. Roberts v. Thomas, 94 Miss. 219, 48 So. 408, 1908 Miss. LEXIS 46 (Miss. 1908).

Land, always occupied as homestead by claimant except for about 6 weeks when she lived with her husband on his father’s place, was her homestead, although after separating from husband she rented part of her land for one year and stayed elsewhere at night but kept one room of the house and a horse and other animals on the land. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

Owner of country homestead may purchase house in village, move thereto to educate children, qualify as elector and hold municipal office, without forfeiting right to claim country home as exempt, if he keeps actual possession in person or by some member of his family, cultivates it, continues to claim it as homestead and intends to return as soon as object of moving to village is accomplished. Gilmore v. Brown, 93 Miss. 63, 46 So. 840, 1908 Miss. LEXIS 111 (Miss. 1908).

5. —Buildings.

A storehouse in which the wife conducts business, separated by a fence from the residence, is a part of the homestead. Baldwin v. Tillery, 62 Miss. 378, 1884 Miss. LEXIS 88 (Miss. 1884).

One who owns and resides upon a town lot as a homestead may erect thereon any building or buildings necessary or convenient to his residence, or to the business in which he and his family may be engaged, and may hold the entire premises as homestead exemption if the value thereof be within the prescribed limit. Baldwin v. Tillery, 62 Miss. 378, 1884 Miss. LEXIS 88 (Miss. 1884).

6. Selection of homestead.

Judgment debtor may claim exemption any time before sale. Woods v. Bowles, 92 Miss. 843, 46 So. 414 (Miss. 1908).

A debtor, whose conveyance of land to his wife was set aside by his creditors as being fraudulent, could thereafter move upon the land and claim homestead exemption. Dulion v. Harkness, 80 Miss. 8, 31 So. 416, 1902 Miss. LEXIS 216 (Miss. 1902).

The right to make a selection of a homestead by statutory declaration is in the owner of the land, and if he die without making the selection his widow, to whom the homestead descended, as tenant in common with their children, has not the right of selection. Wiseman v. Parker, 73 Miss. 378, 19 So. 102, 1895 Miss. LEXIS 133 (Miss. 1895).

7. Persons entitled.

A married woman living with her husband is not the “head of a family” within the meaning of the statute. In re Logan, 1 F. Supp. 225, 1932 U.S. Dist. LEXIS 1697 (D. Miss. 1932).

A decree appointing a receiver impliedly limits the rights of the receiver to property which is not exempt from execution. Levy v. T. R. Rosell & Co., 82 Miss. 527, 34 So. 321, 1903 Miss. LEXIS 154 (Miss. 1903).

A contract by mercantile partners who are largely indebted, that their business shall be conducted by others, and that all money arising therefrom shall be applied pro rata to the debts of the partnership with authority to the managers to replenish the stock, but requiring that all proceeds shall be deposited in a bank and paid out ratably to his creditors, preclude the partners from claiming any exemption in the property covered by the contract. Levy v. T. R. Rosell & Co., 82 Miss. 527, 34 So. 321, 1903 Miss. LEXIS 154 (Miss. 1903).

Only a person who is both a citizen and a resident of this state, as well as a householder having a family, is entitled to homestead exemption. Vignaud v. Dean, 77 Miss. 860, 27 So. 881, 1900 Miss. LEXIS 37 (Miss. 1900); Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 So. 227, 1913 Miss. LEXIS 259 (Miss. 1913).

An unmarried man occupying alone the back room of his law office as a sleeping apartment and taking his meals at a hotel, but who provides a servant for and supports an aged grandfather living in a house owned by defendant, is not a “householder having a family,” and is not entitled to the exemption of personal property allowed by this statute. Pearson v. Miller, 71 Miss. 379, 14 So. 731, 1893 Miss. LEXIS 80 (Miss. 1893).

A debtor may have a homestead exemption in land which he owns in common with others and as against creditors consent of the co-tenants to his occupancy is not essential. Lewis v. White, 69 Miss. 352, 13 So. 349, 1891 Miss. LEXIS 132 (Miss. 1891).

8. Sale or transfer of homestead.

Equity will enjoin the sale, under execution, of a homestead so heavily encumbered that the injury to the owner will be attended by no benefit to the creditor. Koen v. Brill, 75 Miss. 870, 23 So. 481, 1898 Miss. LEXIS 27 (Miss. 1898).

9. Mortgage on homestead.

Husband and wife may execute valid mortgage on after-acquired property used as homestead. Adkinson & Bacot Co. v. Varnado, 91 Miss. 825, 47 So. 113, 1907 Miss. LEXIS 215 (Miss. 1908).

10. Amount of homestead exemption.

Householder claiming exemption of rural land, held limited to $3,000 in value. Clegg v. Federal Reserve Bank, 169 Miss. 578, 153 So. 812, 1934 Miss. LEXIS 77 (Miss. 1934).

Creditors entitled to excess over homestead value where other property insufficient to pay debts. Marx v. Haley, 92 Miss. 113, 45 So. 612, 1907 Miss. LEXIS 17 (Miss. 1907).

Homestead in towns measured by value not exceeding $2,000 and not territorial extent. Stevens v. Wilbourn, 88 Miss. 514, 41 So. 66, 1906 Miss. LEXIS 167 (Miss. 1906).

Where a judgment-debtor owns jointly with his wife a city lot, he is entitled to a homestead exemption therein of two thousand dollars to be taken wholly from his one-half interest. Kripperdorf v. Wolfe, 70 Miss. 81, 12 So. 26 (Miss. 1892).

Part of a town lot on which a house is occupied as a residence at certain seasons of the year, and separated by a fence only from the main part of the lot on which is situated the house, usually occupied as a homestead, is exempt from execution against the owner, unless it be shown that the whole is worth more than two thousand dollars. Colbert v. Henley, 64 Miss. 374, 1 So. 631, 1886 Miss. LEXIS 75 (Miss. 1886).

The exemption of a homestead under the section [Code 1942, § 318] attaches to the extent of the value exempt only. State Nat'l Bank v. Lyons, 52 Miss. 181, 1876 Miss. LEXIS 193 (Miss. 1876).

11. Selection of personal property as exempt.

Although an exemption is a personal privilege and as a general rule cannot be taken advantage of, except by the execution or attachment debtor, an exception is that his wife can make the claim for him. Reid v. Halpin, 185 Miss. 396, 188 So. 310, 1939 Miss. LEXIS 165 (Miss. 1939).

Exemptionist may select personal property of $250 in value out of any that he has, regardless of kind or character. Hartfield v. Anderson, 156 Miss. 724, 126 So. 830, 1930 Miss. LEXIS 219 (Miss. 1930).

Where the aggregate value of all of the personal property seized is less than $250 no selection of the particular articles claimed as exempt is necessary. Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630, 1905 Miss. LEXIS 66 (Miss. 1905).

An exemptionist may select a barrel of whisky, if within the prescribed value. Bernheim v. Andrews, 65 Miss. 28, 3 So. 75, 1887 Miss. LEXIS 9 (Miss. 1887).

12. —Other statutory exemptions in lieu.

Under former enactment of this section (Hemingway’s Code, § 1822), wage exemption could be waived, and laborer residing in city, town, or village might hold statutory amount of personal property in lieu thereof. First Nat'l Bank v. Ellison, 135 Miss. 42, 99 So. 573, 1924 Miss. LEXIS 20 (Miss. 1924).

13. Sale or transfer of personal property.

Sale of goods exempt from execution is valid, even though made with intent to defraud seller’s creditors. Orgill Bros. v. Gee, 152 Miss. 590, 120 So. 737, 1928 Miss. LEXIS 270 (Miss. 1928).

Evidence held not sufficient to show merchandise sold in gross without complying with law constituted exempt property of seller. Walton v. Walter Fisher Co., 146 Miss. 291, 111 So. 364, 1927 Miss. LEXIS 181 (Miss. 1927).

14. Rights of survivors.

Widow and children of deceased tenant, leaving nothing but exempt property, could, after unsuccessfully demanding tenant’s share from landlord, recover in replevin. Williams v. Sykes, 170 Miss. 88, 154 So. 267, 154 So. 727, 1934 Miss. LEXIS 100 (Miss. 1934).

“Family,” in eyes of homestead law, continues to exist so long as widow lives and remains widow. Miers v. Miers, 160 Miss. 746, 133 So. 133, 1931 Miss. LEXIS 135 (Miss. 1931).

Widow, being entitled to use and occupancy of homestead, was entitled to rents thereof, and would so continue during her life or widowhood unless she elected or consented otherwise. Miers v. Miers, 160 Miss. 746, 133 So. 133, 1931 Miss. LEXIS 135 (Miss. 1931).

§ 85-3-25. Homestead declaration; form; deposit with clerk of chancery court.

Any citizen entitled to a homestead and desiring to select the same and obtain the advantages of such selection, may make a declaration thereof to the following effect, namely:

“The State of Mississippi,Homestead declaration. County of “I, John Doe [or Nancy Roe], a citizen of said state and county, do declare that I am entitled to a homestead in said county, and that I have selected the same as follows: [Here describe the land and premises. Append plat if desired.] “Witness my signature, this day of , A. D. “”

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The declaration shall be acknowledged or proved as a deed is required to be, and deposited in the office of the clerk of the chancery court for record, in a book to be kept for that purpose, and styled “Homestead Record.”

HISTORY: Codes, 1892, § 1972; 1906, § 2148; Hemingway’s 1917, § 1823; 1930, § 1767; 1942, § 319.

RESEARCH REFERENCES

Am. Jur.

40 Am. Jur. 2d, Homestead §§ 78-82.

13 Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:309 (waiver of homestead).

JUDICIAL DECISIONS

1. In general.

2. Selection of homestead.

3. Separate tracts or lots.

1. In general.

The language of Mississippi Code §85-3-25 indicates that a homestead declaration is voluntary and not mandatory. Shows v. Watkins, 485 So. 2d 288, 1986 Miss. LEXIS 2380 (Miss. 1986).

A rural homesteader should ordinarily be entitled to as much as 160 acres for homestead purposes if such an amount of his land is so located as to be truly susceptible of being devoted to homestead purposes as a unit, and without giving the homestead laws an unreasonable application for the protection of the homesteader in that behalf. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

The provisions of this section [Code 1942, § 319] authorizing the filing of a declaration of homestead are prospective, and can have no application in cases of debts contracted before the code became operative. Hinds v. Morgan, 75 Miss. 509, 23 So. 35, 1897 Miss. LEXIS 130 (Miss. 1898).

2. Selection of homestead.

The husband, as head of the family, may bind the wife by his selection of a homestead if it is in good faith and not for the purpose of defeating her rights. Biglane v. Rawls, 247 Miss. 226, 153 So. 2d 665, 1963 Miss. LEXIS 295 (Miss. 1963).

Where grantor of the timber rights in tract exceeding one hundred sixty acres, to the deed for which timber his wife was not a party, failed to make a declaration of homestead or to petition the court for a designation of homestead, neither such grantor nor the court had the right to fix the allotment of the exempt homestead, the proper procedure in such case being an allotment by commissioners appointed by the court. Robert G. Bruce Co. v. Spears, 181 Miss. 786, 181 So. 333, 1938 Miss. LEXIS 119 (Miss. 1938).

Though a declaration as to a homestead as provided by statute and declaration’s recordation are not required in all cases, it is convenient form of giving notice of purpose to return, though parties may not be actually residing thereon. Ritter v. Whitesides, 179 Miss. 706, 176 So. 728, 1937 Miss. LEXIS 81 (Miss. 1937).

Householder claiming exemption of rural land was limited to $3,000 in value. Clegg v. Federal Reserve Bank, 169 Miss. 578, 153 So. 812, 1934 Miss. LEXIS 77 (Miss. 1934).

Intention to occupy, coupled with placing of furniture on premises, insufficient to create exemption in absence of declaration. Chrismand v. Mauldin, 130 Miss. 259, 94 So. 1, 1922 Miss. LEXIS 200 (Miss. 1922).

A husband who has made a homestead declaration on record designating land of greater value than three thousand dollars, may convey a part thereof before revoking the declaration without his wife’s joinder where the remainder of the land equals or exceeds said sum. Nixon v. Hewes, 80 Miss. 88, 31 So. 899, 1902 Miss. LEXIS 266 (Miss. 1902).

The right to select by a statutory declaration belongs solely to the owner of the lands, and where a husband dies without making a selection of homestead by such declaration, the widow has no right to select, but may have an allotment of a homestead as provided by statute (Code 1942, § 323). Wiseman v. Parker, 73 Miss. 378, 19 So. 102, 1895 Miss. LEXIS 133 (Miss. 1895).

If a husband had, during his life, selected the homestead, his widow would be confined to such selection. Wiseman v. Parker, 73 Miss. 378, 19 So. 102, 1895 Miss. LEXIS 133 (Miss. 1895).

3. Separate tracts or lots.

Neither the cases dealing only with urban property nor those dealing with an urban tract and a rural tract as constituting together one homestead are applicable to a case where rural lands are involved. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

Where a decedent resided on one tract of land and used such tract with another as a farm unit which consisted of less than 160 acres, the widow was entitled to claim both parcels of land as a homestead although they were not contiguous. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

One claiming city residence as homestead may not also claim 80-acre tract about two and one-half miles from city residence, although value of both does not exceed exemption allowed. Nye v. Winborn, 120 Miss. 1, 81 So. 644, 1919 Miss. LEXIS 57 (Miss. 1919).

If a homesteader lives on a forty-acre tract of land leased by him adjoining that to which he has title, and his farm is in part on both tracts, he may claim an exemption; but the homestead must be laid off just as if he owned the tract on which he resides. Hinds v. Morgan, 75 Miss. 509, 23 So. 35, 1897 Miss. LEXIS 130 (Miss. 1898).

§ 85-3-27. Homestead declaration; effect.

The declaration, for not more than one hundred sixty (160) acres, and not exceeding in value Seventy-five Thousand Dollars ($75,000.00); or, if the homestead be in a city, town or village, not exceeding in value Seventy-five Thousand Dollars ($75,000.00) after being filed for record, shall be notice to all persons to be affected thereby; and shall bind the exemptionist, the spouse of the exemptionist if the exemptionist be married, and the creditors of the exemptionist until the exemptionist shall execute and file a new declaration which shall nullify the preceding one, and otherwise have like effect; and shall moreover entitle the exemptionist thereafter to hold the same as exempt to the extent of such value; but subject to contest and legal designation or allotment, if the exemptionist had declared for too much, or has insufficiently or improperly described the premises; and to contest by creditors on the ground that the exemptionist was not entitled to a homestead, and by the spouse of the exemptionist on the ground that it was intended to defraud or circumvent such spouse.

HISTORY: Codes, 1892, § 1973; 1906, § 2149; Hemingway’s 1917, § 1824; 1930, § 1768; 1942, § 320; Laws, 1966, ch. 622, § 1; Laws, 1970, ch. 323, § 3; Laws, 1979, ch. 447, § 3; Laws, 1991, ch. 479, § 3; eff from and after July 1, 1991.

RESEARCH REFERENCES

ALR.

Enforcement of claim for alimony or support, or for attorneys’ fees and costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Am. Jur.

40 Am. Jur. 2d, Homestead §§ 81, 82.

13 Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:309 (waiver of homestead).

JUDICIAL DECISIONS

1. In general.

2. Limitations.

3. Effect of declaration.

4. Notice.

1. In general.

In this section [Code 1942, § 320] the words “was not entitled to a homestead” should not be construed literally; all that is necessary to entitle a judgment creditor to sell a particular tract of land under execution is that the proof show that neither the judgment debtor nor his wife is entitled to claim the specific property as a homestead which is sought to be sold under execution. Adams v. Bounds, 224 Miss. 518, 81 So. 2d 235, 1955 Miss. LEXIS 517 (Miss. 1955).

The provision of this section [Code 1942, § 320] allowing increase of exemption to heads of families who make of record their selection of homestead is beneficent. Chapman v. White Sewing-Mach Co., 76 Miss. 821, 25 So. 868, 1899 Miss. LEXIS 24 (Miss. 1899), modified, Chapman v. White Sewing-Mach. Co., 77 Miss. 890, 28 So. 749, 1900 Miss. LEXIS 57 (Miss. 1900).

2. Limitations.

Householder claiming exemption of rural land was limited to $3,000 in value. Clegg v. Federal Reserve Bank, 169 Miss. 578, 153 So. 812, 1934 Miss. LEXIS 77 (Miss. 1934).

3. Effect of declaration.

The husband, as head of the family, may bind the wife by his selection of a homestead if it is in good faith and not for the purpose of defeating her rights. Biglane v. Rawls, 247 Miss. 226, 153 So. 2d 665, 1963 Miss. LEXIS 295 (Miss. 1963).

A husband who has made a homestead declaration on record designating land of greater value than three thousand dollars, may convey a part thereof before revoking the declaration without his wife’s joinder where the remainder of the land equals or exceeds such sum. Nixon v. Hewes, 80 Miss. 88, 31 So. 899, 1902 Miss. LEXIS 266 (Miss. 1902).

If a debtor, in making a homestead declaration, select land in which he has title only to an undivided half interest, he will be bound by the selection. Chapman v. White Sewing-Mach. Co., 77 Miss. 890, 28 So. 749, 1900 Miss. LEXIS 57 (Miss. 1900).

A debtor may select as his homestead one hundred and sixty-five acres of land owned by himself and wife as tenants in common, and such selection is binding on both him and his creditors when the value of the same does not exceed three thousand dollars. Chapman v. White Sewing-Mach. Co., 78 Miss. 438, 28 So. 735, 1900 Miss. LEXIS 75 (Miss. 1900).

4. Notice.

Though a declaration as to a homestead as provided by statute and declaration’s recordation are not required in all cases, it is convenient form of giving notice of purpose to return, though parties may not be actually residing thereon. Ritter v. Whitesides, 179 Miss. 706, 176 So. 728, 1937 Miss. LEXIS 81 (Miss. 1937).

§ 85-3-29. Homestead declaration; recording.

The clerk shall file, certify, record, and alphabetically index the declaration, in the same manner as deeds are required to be, and with like effect in all respects, and under like penalties.

HISTORY: Codes, 1892, § 1974; 1906, § 2150; Hemingway’s 1917, § 1825; 1930, § 1769; 1942, § 321.

§ 85-3-31. Homestead designated by law when not selected.

The homestead of every citizen entitled to such an exemption who shall not select or who has improperly selected his homestead by declaration, shall be, namely: A tract of land in the form of, first, a square, or second, 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 sixty (160) acres in area, nor Seventy-five Thousand Dollars ($75,000.00) in value. And in all cases where the homestead may be composed of detached parcels of land, it shall be made up of those nearest the forty (40) acre or other less tract containing the dwelling house.

HISTORY: Codes, 1892, § 1975; 1906, § 2151; Hemingway’s 1917, § 1826; 1930, § 1770; 1942, § 322; Laws, 1970, ch. 323, § 4; Laws, 1979, ch. 447, § 4; Laws, 1991, ch. 479, § 4; eff from and after July 1, 1991.

JUDICIAL DECISIONS

1. In general.

In an action to determine the validity of a deed to property alleged to be homestead in which grantor’s wife did not joint, where the evidence showed that the tract in controversy and a non-contiguous tract upon which grantor’s dwelling was located were both used for timber, it was error for the chancellor to hold that the land in controversy was not homestead property, even though he found that the value of the other tract upon which the dwelling house was situated was in excess of the valuation mentioned in the homestead statute. Hendry v. Hendry, 300 So. 2d 147, 1974 Miss. LEXIS 1614 (Miss. 1974).

Notation on a deed by a husband whose remaining property exceeds that which he may claim as homestead, that the land therein described is no part of his homestead, amounts to a designation of homestead in the remaining property. Biglane v. Rawls, 247 Miss. 226, 153 So. 2d 665, 1963 Miss. LEXIS 295 (Miss. 1963).

A grantor retaining sufficient property to constitute a homestead elects to treat the retained property as a homestead. Biglane v. Rawls, 247 Miss. 226, 153 So. 2d 665, 1963 Miss. LEXIS 295 (Miss. 1963).

Where grantor of the timber rights in tract exceeding one hundred sixty acres, to the deed for which his wife was not a party, failed to make a declaration of homestead or to petition the court for a designation of homestead, neither such grantor nor the court had the right to fix the allotment of the exempt homestead, the proper procedure in such case being an allotment by commissioners appointed by the court. Robert G. Bruce Co. v. Spears, 181 Miss. 786, 181 So. 333, 1938 Miss. LEXIS 119 (Miss. 1938).

The condition of practicability annexed to the preference of one mode of allotment over another under this section [Code 1942, § 322] has reference to the rights and welfare of both the exemptionist and creditors. Wiseman v. Parker, 73 Miss. 378, 19 So. 102, 1895 Miss. LEXIS 133 (Miss. 1895).

Under this section [Code 1942, § 322], 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. Wiseman v. Parker, 73 Miss. 378, 19 So. 102, 1895 Miss. LEXIS 133 (Miss. 1895).

§ 85-3-33. Heirs may designate homestead.

In all cases where a deceased person has left a widow or husband, as the case may be, or other heirs at law, then such widow or husband or other heirs at law, or both, who may be entitled by law to inherit from the deceased person, shall be entitled to have the homestead exempt, whether selected, designated or declared for by said decedent in his lifetime or not, and such person or persons so entitled to inherit by law may select, designate or declare for such homestead on or any of the real property of which said decedent died seized and possessed, and have the same set apart to them, or either of them, as the homestead of the decedent.

HISTORY: Codes, 1892, § 1975; 1906, § 2151; Hemingway’s 1917, § 1826; 1930, § 1770; 1942, § 322; Laws, 1970, ch. 323, § 4, eff from and after July 1, 1970.

RESEARCH REFERENCES

ALR.

Operation and effect of antenuptial agreements to waive or bar surviving spouse’s right to probate homestead or surviving family’s similar homestead right or exemption. 65 A.L.R.2d 727.

JUDICIAL DECISIONS

1. In general.

In a suit by an heir of deceased grantor to enjoin removal of timber from grantor’s homestead under a timber deed which was void as to homestead because the wife of grantor did not sign, where it appeared that the grantor did not specifically designate the 160 acres which constituted the homestead tract out of 300 acre tract covered by deed, and the court should have appointed commissioners under the statute to make the allotment. Thompson v. Dyess, 218 Miss. 770, 67 So. 2d 721, 1953 Miss. LEXIS 602 (Miss. 1953).

§ 85-3-35. Allotment of homestead; selection of householders or freeholders to set off portion of land.

If the land on which the person claiming the exemption resides exceeds one hundred sixty (160) acres in quantity or Seventy-five Thousand Dollars ($75,000.00) in value, inclusive of improvements, and a proper selection of a homestead has not been made and filed for record, the officer holding an execution against such persons, and not finding other property to satisfy the same, shall levy the execution on the whole land, and shall notify the defendant, if to be found, and the plaintiff or his attorney, if in his county, each to select one (1) householder or freeholder; and each party may select one (1), and inform the officer of his selection, and the officer shall select a third; or, if defendant or plaintiff or his attorney be absent from the county, or if he shall not make a selection, or if the person selected will not act, the officer shall select the three (3) householders or freeholders, who, on oath to be administered by him, shall set off to such person a portion of the land, embracing the dwelling house and outhouses and not exceeding one hundred sixty (160) acres in quantity nor Seventy-five Thousand Dollars ($75,000.00) in value, and the allotment, distinctly indicated by metes and bounds or other sufficient description, shall be returned with the execution; and the levy of the execution shall be dismissed as to the part so allotted; and the officer may advertise and sell the remainder of the land. In making such allotment, the homestead shall be laid off as designated by law in case of the debtor’s failure to select his homestead and file his declaration thereof for record.

HISTORY: Codes, 1857, ch. 61, art. 282; 1871, § 2136; 1880, § 1251; 1892, § 1976; 1906, § 2152; Hemingway’s 1917, § 1827; 1930, § 1771; 1942, § 323; Laws, 1970, ch. 323, § 5; Laws, 1979, ch. 447, § 5; Laws, 1991, ch. 479, § 5, eff from and after July 1, 1991.

Cross References —

Duty of appraisers of estates to set apart exempt property, see §91-7-117.

Duty of appraisers of estates to report to court, see §91-7-137.

Power of guardian to purchase home, see §93-13-38.

RESEARCH REFERENCES

Am. Jur.

40 Am. Jur. 2d, Homestead §§ 37 et seq.

JUDICIAL DECISIONS

1. In general.

2. Mode of allotment.

3. Sale of excess.

4. Rights of survivor.

1. In general.

In a proceeding to distribute the surplus fund remaining after a foreclosure sale of real property, the trial court erred in concluding that the defaulting landowners were entitled to a $15,000 homestead exemption where all but one of their creditors had obtained and enrolled judgments against them prior to the effective date of the law increasing the homestead exemption from $5,000 to $15,000; nor did the increased exemption apply to the remaining creditor where its claim was pending on the effective date of the new law. Thus, the $ 15,000 exemption was applicable to all of the creditors’ claim. Builders Supply Co. v. Pine Belt Sav. & Loan Asso., 369 So. 2d 743, 1979 Miss. LEXIS 2257 (Miss. 1979).

A householder claiming exemption of rural land sought to be subjected to payment of his debts was limited to 160 acres not exceeding $3,000 in value. Clegg v. Federal Reserve Bank, 169 Miss. 578, 153 So. 812, 1934 Miss. LEXIS 77 (Miss. 1934).

2. Mode of allotment.

In a suit by an heir of deceased grantor to enjoin removal of timber from grantor’s homestead under a timber deed which was void as to homestead because the wife of grantor did not sign, where it appeared that the grantor did not specifically designate the 160 acres which constituted the homestead tract out of 300 acre tract covered by deed, and the court should have appointed commissioners under the statute to make the allotment. Thompson v. Dyess, 218 Miss. 770, 67 So. 2d 721, 1953 Miss. LEXIS 602 (Miss. 1953).

Where grantor of the timber rights in tract exceeding one hundred sixty acres, to the deed for which timber his wife was not a party, failed to make a declaration of homestead or to petition the court for a designation of homestead, neither such grantor nor the court had the right to fix the allotment of the exempt homestead, the proper procedure in such case being an allotment by commissioners appointed by the court. Robert G. Bruce Co. v. Spears, 181 Miss. 786, 181 So. 333, 1938 Miss. LEXIS 119 (Miss. 1938).

Allotment was not void so as to authorize an injunction against an execution sale because of the manner in which sheriff selected freeholders. Edwards Bros. v. Bilbo, 138 Miss. 484, 103 So. 209, 1925 Miss. LEXIS 38 (Miss. 1925).

Where husband had not, during his lifetime, made any selection of homestead in land owned by him, the wife could have an allotment of the homestead as provided in this section [Code 1942, § 323), and the court could not make the allotment. Wiseman v. Parker, 73 Miss. 378, 19 So. 102, 1895 Miss. LEXIS 133 (Miss. 1895).

If a homestead in a town exceeds the statutory value, the sheriff cannot select and sell part of it. Rhyne v. Guevara, 67 Miss. 139, 6 So. 736, 1889 Miss. LEXIS 21 (Miss. 1889).

3. Sale of excess.

Excess of proceeds of sale over money secured by trust deed was not exempt from payment of probated claims against deceased’s estate, since in ascertaining value of premises claimed as homestead legal encumbrances were not to be deducted. Clark v. Edwards, 180 Miss. 97, 177 So. 361, 1937 Miss. LEXIS 120 (Miss. 1937), overruled, Dogan v. Cooley, 184 Miss. 106, 185 So. 783, 1939 Miss. LEXIS 40 (Miss. 1939).

Where land is levied on under execution and the judgment-debtor has set off a part of it as a homestead the remainder is subject to sale, and he cannot afterwards, and before sale, dispose of the homestead so allotted to him, and move on the other land and claim homestead therein. Richie v. Duke, 70 Miss. 66, 12 So. 208, 1892 Miss. LEXIS 106 (Miss. 1892).

4. Rights of survivor.

Surviving widow entitled to occupy homestead of 160 acres regardless of value and heirs cannot have the property partitioned. Dickerson v. Leslie, 94 Miss. 627, 47 So. 659, 1909 Miss. LEXIS 319 (Miss. 1909).

Where all the property left by a decedent including money does not equal the exemption to which his widow was entitled, neither the administrator nor any one else can take the money from her or hold her liable for it, no exemption having been set aside to her. O'Brian Bros. v. Wilson, 82 Miss. 93, 33 So. 946 (Miss. 1903).

§ 85-3-37. Allotment of homestead; premises not capable of division.

If the premises be not capable of being so divided as to set off the debtor a part, including the dwelling house and not exceeding Seventy-five Thousand Dollars ($75,000.00) in value, inclusive of improvements, or if the debtor has made a valid homestead declaration, and the homestead exceeds Seventy-five Thousand Dollars ($75,000.00) in value, the householders or freeholders shall value the land, inclusive of the dwelling house and buildings; and if the surplus of the valuation, over and above the exempt value, shall, within sixty (60) days, be paid by the execution-debtor, the premises shall not be sold; but if the surplus be not paid within sixty (60) days after the valuation, the officer may advertise and sell the premises, if the same shall bring a greater sum than the exempt value; and out of the proceeds of the sale he shall pay to the execution-debtor the sum of Seventy-five Thousand Dollars ($75,000.00).

HISTORY: Codes, 1857, ch. 61, art. 283; 1871, § 2137, 1880, § 1252; 1892, § 1977; 1906, § 2153; Hemingway’s 1917, § 1828; 1930, § 1772; 1942, § 324; Laws, 1970, ch. 323, § 6; Laws, 1979, ch. 447, § 6; Laws, 1991, ch. 479, § 6, eff from and after July 1, 1991.

JUDICIAL DECISIONS

1. In general.

Under this section [Code 1942, § 324], specifically with respect to the phrase pertaining to the sale of homestead premises “if the same shall bring a greater sum than the exempt value,” it is manifest that if the sale does not bring in excess of $3,000 it shall be abandoned and no further proceedings taken, but if it does bring more than $ 3,000 the officer conducting the sale must, out of the proceeds of the sale pay to the execution debtor the sum of $3,000, encumbrances being deductible in determining such value. Dogan v. Cooley, 184 Miss. 106, 185 So. 783, 1939 Miss. LEXIS 40 (Miss. 1939).

The rule of liberal construction prevails with respect to exemption laws of the state, doubtful questions being construed favorably to the homesteader. Dogan v. Cooley, 184 Miss. 106, 185 So. 783, 1939 Miss. LEXIS 40 (Miss. 1939).

Exemptionist may enjoin levy of execution on homestead claimed to exceed statutory value where provisions of this section [Code 1942, § 324] are not followed; method of valuation cannot be defeated by trial in equity on conflicting evidence, as to value not arrived at in accordance with this section [Code 1942, § 324]. Willis v. Allen, 131 Miss. 264, 95 So. 435, 1922 Miss. LEXIS 287 (Miss. 1923).

§ 85-3-39. Allotment of homestead; how contested by plaintiff.

If, before or after the return of the execution, the plaintiff shall file in the clerk’s office from which the execution issued, or before the justice of the peace who issued it, as the case may be, an affidavit that he verily believes the allotment made to the debtor by the freeholders or householders to be incorrect, and the land so allotted by them, or some part of it, to be liable to sale under his execution, a summons shall be issued by the clerk or justice of the peace for the defendant, returnable to the next term of the court, requiring him to appear; and, on return of the summons executed, an issue shall be made up under the direction of the court and tried, as to whether the allotment were correctly and fairly made or not, and, if not, what part of the land ought to be sold under the execution; and, if it be found that any part of the land is subject to be sold, a venditioni exponas shall be issued for the sale of such part, and the plaintiff shall have judgment for costs; but if the issue be found for the defendant, he shall recover costs of the plaintiff.

HISTORY: Codes, 1871, § 2138; 1880, § 1253; 1892, § 1978; 1906, § 2154; Hemingway’s 1917, § 1829; 1930, § 1773; 1942, § 325.

Editor’s Notes —

Pursuant to Miss. Constn. Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 85-3-41. Allotment of homestead; how contested by defendant.

If a defendant be dissatisfied with the allotment, he may make affidavit before the sale, which affidavit may be made before the officer having the execution, that he verily believes it to be incorrect, specifying wherein he believes it so, and the officer shall suspend the sale of so much as the defendant so claims, and return the affidavit with the execution to the court to which it is returnable; and a summons shall issue for plaintiff, or, if he be a non-resident of this state, for his attorney of record in the case, if he have one; and if he be non-resident, and have no attorney in this state, publication may be made as in other cases; and when the process shall have been returned executed, or publication made, an issue shall be made up, and like proceeding had as when the plaintiff had filed an affidavit of dissatisfaction; and if the issue, in whole or in part, be found in favor of defendant, judgment shall be entered accordingly, and execution may go according to the judgment.

HISTORY: Codes, 1871, § 2139; 1880, § 1254; 1892, § 1979; 1906, § 2155; Hemingway’s 1917, § 1830; 1930, § 1774; 1942, § 326.

§ 85-3-43. Homestead liable to debts when debtor ceases to reside thereon.

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.

HISTORY: Codes, 1871, § 2144; 1880, § 1256; 1892, § 1981; 1906, § 2157; Hemingway’s 1917, § 1832; 1930, § 1776; 1942, § 328.

RESEARCH REFERENCES

Am. Jur.

40 Am. Jur. 2d, Homestead §§ 172 et seq.

JUDICIAL DECISIONS

1. In general.

2. Abandonment.

3. —Absence.

4. —Removal.

1. In general.

For a judgment debtor to avail himself of the rule that he may successfully interpose his claim of exemption as against the execution creditor at any time before sale under the execution if the debtor has actually got into the occupancy or reoccupancy of the land as a homestead at the time of the sale, the occupancy must be such as will stamp the place claimed as a homestead with the character then and there of an actual and permanent residence of the debtor and his family, and it is not sufficient that it has been made a mere part time lodging place, while the real residence of the family remains elsewhere. Bank of Cruger v. Hodge, 189 Miss. 356, 198 So. 26, 1940 Miss. LEXIS 129 (Miss. 1940).

This section [Code 1942, § 328] allows only a removal which may be justly adjudged as temporary and requires a speedy return as soon as the cause of the absence can be removed. Bank of Cruger v. Hodge, 189 Miss. 356, 198 So. 26, 1940 Miss. LEXIS 129 (Miss. 1940).

Homestead laws are to be liberally construed in favor of debtor; there is no abandonment unless it is clear that exemptionist moved from homestead with intention of not returning. Jackson v. Coleman, 115 Miss. 535, 76 So. 545, 1917 Miss. LEXIS 230 (Miss. 1917).

Ceasing to reside on a homestead renders it liable to debts, unless the removal be temporary by reason of casualty or necessity and with the purpose of speedily reoccupying. Moore v. Bradford, 70 Miss. 70, 11 So. 630, 1892 Miss. LEXIS 60 (Miss. 1892).

The word “casualty” refers to accident, while “necessity” may embrace considerations of health, or travel, or public business, or private business emergency of an exceptional and temporary character. Thompson, Lampkin & Co. v. Tillotson, 56 Miss. 36, 1878 Miss. LEXIS 38 (Miss. 1878).

2. Abandonment.

One may claim homestead exemption only in property owned and occupied as residence, and husband abandoned homestead rights when he voluntarily left property without intent to return. Joe T. Dehmer Distributors, Inc. v. Temple, 826 F.2d 1463, 1987 U.S. App. LEXIS 12486 (5th Cir. Miss. 1987).

75-year old homeowner was not divested of his rights to claim homestead exemption by virtue of his conviction for murder and sentence of life imprisonment, despite claim that he was not entitled to the exemption because he had no legal right to occupy the property and that by voluntarily murdering victim he had abandoned any claim to homestead that he would otherwise have. Roberts v. Grisham, 493 So. 2d 940, 1986 Miss. LEXIS 2588 (Miss. 1986).

Where a husband and wife, having occupied certain property as their homestead, acquired new property intending to live there permanently and make it their homestead, and moved to the new property, vacating the old homestead, the former homestead was not exempt from the claim of a creditor, and the proceeds of the sale of the former homestead which took place 2 weeks after the move to the new property, were not exempt. Patterson v. Adams, 245 So. 2d 13, 1971 Miss. LEXIS 1348 (Miss. 1971).

The test whether the husband abandoned any homestead rights under statutes invalidating conveyance of the homestead is whether the husband had abandoned the conjugal relation with his wife and the occupancy of the property, but the wrongful ouster of the spouse does not constitute a wilful abandonment; and if a spouse voluntarily separates from the other and abandons the intention of living with him or her through no fault of the latter, he or she has abandoned any homestead rights. Etheridge v. Webb, 210 Miss. 729, 50 So. 2d 603, 1951 Miss. LEXIS 310 (Miss. 1951).

An abandonment of a homestead may be obtained by a free and voluntary separation of the parties and the test is whether the husband was away from the homestead with the mature intention not to return to it. Etheridge v. Webb, 210 Miss. 729, 50 So. 2d 603, 1951 Miss. LEXIS 310 (Miss. 1951).

Evidence that decedent had formerly lived on land, but had ceased to do so for several months before his death, was insufficient to establish homestead. Wright v. Wright, 160 Miss. 235, 134 So. 197, 1931 Miss. LEXIS 202 (Miss. 1931).

Confinement in jail is not abandonment of homestead. Lindsey v. Holly, 105 Miss. 740, 63 So. 222, 1913 Miss. LEXIS 257 (Miss. 1913).

Where the exemptionist abandons a rural homestead and acquires another in town, but finally abandons the latter with the intention of reoccupying the country home, but is prevented by protracted sickness which ended in death, the country home becomes revested with its homestead character and is exempt from his debts. Ross v. Porter, 72 Miss. 361, 16 So. 906, 1894 Miss. LEXIS 122 (Miss. 1894).

3. —Absence.

Absence of seven years occasioned by economic depression and necessity of head of family securing employment elsewhere, with the intention to return when he should earn sufficient money to farm the homestead, constituted an abandonment of homestead where it appeared that the obstacle to returning might never be removed. Bank of Cruger v. Hodge, 189 Miss. 356, 198 So. 26, 1940 Miss. LEXIS 129 (Miss. 1940).

Land, always occupied as homestead by claimant except for about six weeks when she lived with her husband on his father’s place, was her homestead although after separating from husband she rented part of land for one year and stayed elsewhere at night but kept one room of the house and a horse and other animals on the land. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

Temporary absence animo revertendi will not constitute an abandonment. Campbell v. Adair, 45 Miss. 170, 1871 Miss. LEXIS 64 (Miss. 1871).

4. —Removal.

Trust deed executed by husband on 63-acre tract was not void on ground that tract constituted a “homestead” where, though tract had formerly been a homestead, husband and wife at time of execution of trust deed lived on a 188-acre tract to which they held title subject to a trust deed, and where removal from 63-acre tract was not occasioned by any casualty or necessity, and there was nothing to indicate that at time of removal there was any intention to return. Ritter v. Whitesides, 179 Miss. 706, 176 So. 728, 1937 Miss. LEXIS 81 (Miss. 1937).

Recital by husband in trust deed executed by him alone, that land involved was no part of his homestead, was sufficient evidence of his selection of new homestead, when he and wife were, in fact, occupying other land for living purposes, and recordation of such trust deed prevented the parties from acquiring any but subordinate rights in the land. Ritter v. Whitesides, 179 Miss. 706, 176 So. 728, 1937 Miss. LEXIS 81 (Miss. 1937).

Where husband at time of separation from wife removed from their homestead without intention to return, he thereby abandoned his and his wife’s homestead rights therein, though wife remained in possession under color of deed given in settlement of claims for support. Lewis v. Ladner, 177 Miss. 473, 168 So. 281, 172 So. 312, 1936 Miss. LEXIS 230 (Miss. 1936).

That wife remained in occupancy of homestead abandoned by husband was immaterial as to existence of homestead rights, where by agreeing to a marital separation she consented to his removal. Lewis v. Ladner, 177 Miss. 473, 168 So. 281, 172 So. 312, 1936 Miss. LEXIS 230 (Miss. 1936).

One going to another state taking his furniture, and obtaining work there, his return being contingent upon obtaining more favorable work near homestead, has ceased to reside on homestead. Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87, 1918 Miss. LEXIS 68 (Miss. 1918).

Removal of owner to another state, where he organizes and becomes manager of business with no intention of returning if the business proves successful, is not temporary or by reason of casualty or necessity. Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 So. 227, 1913 Miss. LEXIS 259 (Miss. 1913).

Moving from homestead to conduct a boarding house in a near-by town with borrowed money secured by mortgage on the homestead was abandonment thereof, although the owner intended to return if she failed to pay for the place moved to. Bennett Bros. v. Dempsey, 94 Miss. 406, 48 So. 901, 1908 Miss. LEXIS 55 (Miss. 1908).

Owner of country homestead may purchase house in village, move thereto to educate children, qualify as elector and hold municipal office, without forfeiting right to claim country home as exempt, if he keep actual possession in person or by some member of his family, cultivates it, continues to claim it as homestead and intends to return as soon as object of moving to village is accomplished. Gilmore v. Brown, 93 Miss. 63, 46 So. 840, 1908 Miss. LEXIS 111 (Miss. 1908).

Where a husband owning a homestead took up his residence in another state, at the direction of his employer, but after being discharged did not return, the removal constituted an abandonment. Salter v. Embrey, 18 So. 373 (Miss. 1895).

§ 85-3-45. Repealed.

Repealed by Laws, 1979, ch. 447, § 7, eff from and after July 1, 1979.

[Codes, 1880, § 1259; 1892, § 1984; 1906, § 2160; Hemingway’s 1917, § 1835; 1930, § 1779; 1942, § 331]

Editor’s Notes —

Former §85-3-45 pertained to the extent of a wife’s homestead exemption.

§ 85-3-47. Property not exempt from execution.

Property shall not be exempt from execution when the purchase-money thereof forms, in whole or in part, the debt on which the judgment is founded; but if the judgment be not in whole for purchase-money, and the execution be levied on property exempt but for the provisions hereof, and the exemptionist pay or tender the amount of purchase-money included in the judgment before sale, the property shall be released; nor shall any property be exempt from sale for nonpayment of taxes or assessments, or for any labor done thereon, or materials furnished therefor, or when the judgment is for labor performed or upon a forfeited recognizance or bail bond.

HISTORY: Codes, 1857, ch. 61, art. 284; 1871, § 2142; 1880, § 1255; 1892, § 1980; 1906, § 2156; Hemingway’s 1917, § 1831; 1930, § 1775; 1942, § 327.

Cross References —

Owelty being a lien on property, see §11-21-33.

Requirement of bond of indemnity, see §13-3-157.

Definition of “purchase money security interest” under Uniform Commercial Code-Secured Transaction, see §75-9-107.

Secured party filing with respect to purchase money security interest, see §75-9-301.

Priorities among conflicting security interests in the same collateral, see §75-9-312.

Mortgage for purchase money of land, see §89-1-45.

RESEARCH REFERENCES

ALR.

Interest of vendee under executory contract as subject to execution, judgment lien, or attachment. 1 A.L.R.2d 727.

Failure to appear, and the like, resulting in forfeiture or conditional forfeiture of bail, as affecting right to second admission to bail in same noncapital criminal case. 29 A.L.R.2d 945.

Am. Jur.

40 Am. Jur. 2d, Homestead §§ 98 et seq.

JUDICIAL DECISIONS

1. In general.

2. Judgment for purchase money.

3. Debt for labor.

1. In general.

Court will not ingraft other exceptions on exemption law; exempt property is not subject to execution for alimony. Jackson v. Coleman, 115 Miss. 535, 76 So. 545, 1917 Miss. LEXIS 230 (Miss. 1917).

Homestead is not subject to alimony where children are involved, unless pleadings and decree show necessity for lien thereon. Jackson v. Coleman, 115 Miss. 535, 76 So. 545, 1917 Miss. LEXIS 230 (Miss. 1917).

The object and effect of the section [Code 1942, § 327] is to abolish all exemptions against the specified demands, and this consequence follows regardless of the legal process adopted for the collection of such demands; The test of exemption or non-exemption is not the form of action pursued, but the consideration of the debt due. Ransom v. Duff, 60 Miss. 901, 1883 Miss. LEXIS 31 (Miss. 1883).

2. Judgment for purchase money.

Where a writ of seizure is sued out to take and sell exempt property to recover unpaid purchase money, a judgment-creditor of the defendant herein has no right to intervene and contest the plaintiff’s right to a judgment and special execution. Bernheim v. Andrews, 65 Miss. 28, 3 So. 75, 1887 Miss. LEXIS 9 (Miss. 1887).

Homestead exemption cannot be rightfully claimed against a judgment founded on a debt for the purchase-money thereof. Patrick v. Rembert, 55 Miss. 87, 1877 Miss. LEXIS 108 (Miss. 1877).

3. Debt for labor.

The statute provides that property is not exempt “from any labor done thereon, or materials furnished therefor,” regardless of whether the debt has been reduced to a judgment or has been enforced through an execution sale. In re Mitchell, 276 B.R. 142, 2001 Bankr. LEXIS 223 (Bankr. N.D. Miss. 2001).

Conveyance of a homestead by the husband alone in settlement of a claim for labor is governed by Code 1906, § 2159 [Code 1942, § 330] and not by Code 1906, § 2156 [Code 1942, § 327]. Chatman v. Poindexter, 101 Miss. 496, 58 So. 361, 1911 Miss. LEXIS 163 (Miss. 1911).

The judgment of a justice of the peace, in advance of any claim of exemption that, in consequence of any demand for labor performed, all of the defendant’s property is liable without benefit of exemption, is a nullity. Eskridge v. Rutland, 77 Miss. 784, 27 So. 610, 1900 Miss. LEXIS 14 (Miss. 1900).

A debt for labor performed in the lifetime of a deceased debtor whose estate is insolvent may, on proper proceedings in the chancery court, after its allowance as to amount by said court, be enforced against the exempt property of his estate, although not reduced to judgment and therefore not within the letter of the statute. Mitchener v. Robins, 73 Miss. 383, 19 So. 103, 1895 Miss. LEXIS 134 (Miss. 1895).

§ 85-3-49. Exempt property may be disposed of.

The exempt property, real or personal, disposed of by the owner, shall not by disposal become liable to the debts of the owner; and any debtor leaving this state may take with him his personal property which is exempt from execution.

HISTORY: Codes, 1871, § 2143; 1880, § 1257; 1892, § 1982; 1906, § 2158; Hemingway’s 1917, § 1833; 1930, § 1777; 1942, § 329.

Cross References —

Nonresidents, absent or absconding debtors, see §11-31-1.

Affidavit for attachment against debtors, see §11-33-9.

JUDICIAL DECISIONS

1. In general.

2. Residence, requirement of.

3. Conveyance.

4. Sale by land contract.

5. Execution of mortgage.

6. Rights of survivor.

1. In general.

Where a decedent died leaving no surviving spouse, child or grandchild, the homestead exemption expired with her death and was not valid as against unpaid claims against her estate, even though the decedent left a will devising her previously exempt homestead property to her ex-husband; the specific language of §91-1-21 does not continue a decedent’s homestead exemption for anyone other than a surviving spouse, children or grandchildren, and consequently there was no exemptionist who could defeat the claim against the estate’s homestead property. Matter of Memorial Hosp. v. Franzke (In re Estate of Franzke), 634 So. 2d 117, 1994 Miss. LEXIS 132 (Miss. 1994).

A homestead may not be subjected to the debts of a decedent. Mills v. Mills, 279 So. 2d 917, 1973 Miss. LEXIS 1495 (Miss. 1973).

Exemption laws are construed liberally in favor of the owner of the property exempted. Bank of Myrtle v. Garrison, 183 Miss. 526, 184 So. 291, 1938 Miss. LEXIS 265 (Miss. 1938).

Exemptionist may dispose of his exempt property at pleasure and may take it out of the state. Borodofski v. Feld, 88 Miss. 31, 40 So. 816, 1906 Miss. LEXIS 138 (Miss. 1906).

The policy of the section [Code 1942, § 329] is to free the exempt property from forfeiture to creditors if the debtor sell it; The words “disposed of” are very broad, and include any of the modes by which title may be transmitted. Meacham v. Edmonson, 54 Miss. 746, 1877 Miss. LEXIS 93 (Miss. 1877).

2. Residence, requirement of.

Under this section [Code 1942, § 329], Code 1942, § 333, providing that exemptions shall be allowed in favor of residents of state only, cannot refer to vendees, heirs, or legatees, but to the person to whom exemption right is given. Borodofski v. Feld, 88 Miss. 31, 40 So. 816, 1906 Miss. LEXIS 138 (Miss. 1906).

3. Conveyance.

Where a homestead is sold by a sale in which the reasonable price paid for the homestead provides no surplus above the amount of the homestead exemption and prior encumbrances, a lien does not follow the property and the proceeds of the sale are exempt. McMillan v. Aru, 773 So. 2d 355, 2000 Miss. App. LEXIS 177 (Miss. Ct. App. 2000).

A lien that predates the sale of a homestead does not become effective if seller leaves the residence before the deed is recorded; once the debtor has executed a deed, there is neither statutory command nor equitable basis for the creditor to gain some advantage because the debtor then moves prior to the filing of the instrument. McMillan v. Aru, 773 So. 2d 355, 2000 Miss. App. LEXIS 177 (Miss. Ct. App. 2000).

Owners who sell a homestead that has judgment liens filed against it must not by the date of sale have established a new homestead; if the homestead owner has not abandoned the old home and made a full-time residence at a new one prior to the date that a deed is executed, the exemption still exists; thus, this section countenances the normal process of selling property, with extra care needing to be shown by the seller not to establish a new homestead until the time that the conveyance is made. McMillan v. Aru, 773 So. 2d 355, 2000 Miss. App. LEXIS 177 (Miss. Ct. App. 2000).

Under the statute, the proceeds of a voluntary sale of a homestead are exempt under all circumstances, regardless of the vendor’s continuing to be a householder, or his acquiring another homestead, or the intent with which he keeps the proceeds. Davis v. Lammons, 246 Miss. 624, 151 So. 2d 907, 1963 Miss. LEXIS 487 (Miss. 1963).

Where, at the time the husband conveyed real property to his wife, the parties and their children were residing on the property and had been for a number of years, no new home had been acquired by the husband, and, after the husband had left the city, the wife and the children continued to occupy the property, the property was the homestead of the parties, and the husband had a right to convey to his wife the extent and value of the homestead regardless of his intention toward his creditors. Howell v. General Contract Corp., 229 Miss. 687, 91 So. 2d 831, 1957 Miss. LEXIS 315 (Miss. 1957).

Judgment lien does not attach to exempt homestead, and exemptionist can convey homestead unaffected by enrolled judgment. De Bardeleben Coal Corp. v. Parker, 164 Miss. 728, 144 So. 474, 1932 Miss. LEXIS 245 (Miss. 1932).

Where homestead, at time of conveyance, was occupied as such, judgment lien did not extend to it and did not attach thereto when exemptionist moved. De Bardeleben Coal Corp. v. Parker, 164 Miss. 728, 144 So. 474, 1932 Miss. LEXIS 245 (Miss. 1932).

Exemptionist cannot convey land not his homestead free from lien of existing judgment. Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

Attempt of wife to convey homestead without joinder of husband did not subject it to liability for her debts. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

4. Sale by land contract.

A husband who had been an exemptioner did not lose his right to exemption by a sale of the property after the death of his wife at a time when he was over sixty years of age, nor did the fact that he reacquired the homestead on a rescission of the contract for the sale of the land affect his right to exemption. Bank of Myrtle v. Garrison, 183 Miss. 526, 184 So. 291, 1938 Miss. LEXIS 265 (Miss. 1938).

5. Execution of mortgage.

Execution of a mortgage on exempt property is not a disposal within the meaning of this section [Code 1942, § 329]. Bennett Bros. v. Dempsey, 94 Miss. 406, 48 So. 901, 1908 Miss. LEXIS 55 (Miss. 1908).

6. Rights of survivor.

It is clearly the purpose of this section [Code 1942, § 329] and Code 1930, § 1765 [Code 1942, § 317] to give the surviving husband or wife who has been an exemptionist, the benefit of the exemption if the survivor is over sixty years of age at the time of the partner’s death; to give the right to retain the proceeds of the sale of the homestead, should it be best to sell it. Bank of Myrtle v. Garrison, 183 Miss. 526, 184 So. 291, 1938 Miss. LEXIS 265 (Miss. 1938).

§ 85-3-51. Exemptions allowed to residents only.

The exemptions in this chapter shall be allowed in favor of residents of this state only.

HISTORY: Codes, 1892, § 1986; 1906, § 2162; Hemingway’s 1917, § 1838; 1930, § 1781; 1942, § 333.

Cross References —

Aliens holding land, see §89-1-23.

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Exemptions §§ 238 et seq.

40 Am. Jur. 2d, Homestead § 14.

JUDICIAL DECISIONS

1. Residence.

2. Persons subject to residence requirement.

1. Residence.

Mere fact that deceased was non-resident will defeat exemption of bequest of life insurance to resident. Borodofski v. Feld, 88 Miss. 31, 40 So. 816, 1906 Miss. LEXIS 138 (Miss. 1906).

Only a person who is both a citizen and a resident of this state, as well as a householder having a family, is entitled to a homestead exemption. Vignaud v. Dean, 77 Miss. 860, 27 So. 881, 1900 Miss. LEXIS 37 (Miss. 1900); Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 So. 227, 1913 Miss. LEXIS 259 (Miss. 1913).

2. Persons subject to residence requirement.

This section [Code 1942, § 333] as applied to exemption of the proceeds of insurance payable to decedent’s executor or administrator (Code 1942, § 309), cannot refer to vendees, heirs or legatees, but to the person to whom the exemption right is given. Borodofski v. Feld, 88 Miss. 31, 40 So. 816, 1906 Miss. LEXIS 138 (Miss. 1906).

§ 85-3-52. Judgment or claim of another state or political subdivision for failure to pay income tax on pension or retirement benefits.

  1. A judgment or claim in favor of another state or political subdivision of another state for failure to pay that state’s or that political subdivision’s income tax on benefits received from a pension or other retirement plan shall not be a lien on any property in this state, real, personal or mixed, that is owned by a resident of this state.
  2. As used in this section, “pension or other retirement plan” includes:
    1. An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;
    2. An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and
    3. An individual retirement account.

HISTORY: Laws, 1995, ch. 565, § 2, eff from and after July 1, 1995.

Cross References —

Enforcement of lien on enrolled judgment generally, see §§11-7-191,11-7-195.

Filing of copies of foreign judgments and effect thereof, see §11-7-303.

RESEARCH REFERENCES

CJS.

85 C.J.S., Taxation §§ 1209 et seq.

Chapter 5. Joint and Several Debtors

§ 85-5-1. Effect of releasing one or more joint debtors.

In all cases of joint or joint and several indebtedness, the creditor may settle or compromise with and release any one or more of such debtors; and the settlement or release shall not affect the right or remedy of the creditor against the other debtors for the amount remaining due and unpaid, and shall not operate to release any of the others of the said debtors; and all mortgages or securities for the said indebtedness shall remain in full force against the debtors not released, in favor of the creditor, and also in favor of such of the debtors as may be entitled to contribution, payment, or reimbursement from others of said debtors, and the right of payment, contribution or reimbursement, as among themselves, shall not be affected by this section; and if any debtor, so released, shall have paid more than his ratable share of the whole debt, the whole amount paid by him shall be credited, and if less than his ratable share, then the full amount of his ratable share shall be credited, and the other debtors shall be liable for the residue.

HISTORY: Codes, Hutchinson’s 1848, ch. 38, art. 11; 1857, ch. 47, art. 1; 1871, § 2263; 1880, § 1003; 1892, § 2352; 1906, § 2682; Hemingway’s 1917, § 2169; 1930, § 2027; 1942, § 334.

Cross References —

Discontinuance of suit against indorsers of negotiable instruments or against parties secondarily liable thereon, see §75-13-5.

Law of principal and surety, see §§87-5-1 et seq.

Payment extinguishing mortgage, see §89-1-49.

RESEARCH REFERENCES

ALR.

Release of one joint tortfeasor as discharging liability of others under Uniform Contribution Among Tortfeasors Act and other statutes expressly governing effect of release. 6 A.L.R.5th 883.

Release of joint tortfeasor. 6 A.L.R.5th 883.

Am. Jur.

18 Am. Jur. 2d, Contribution §§ 8 et seq.

66 Am. Jur. 2d, Release §§ 35 et seq.

5 Am. Jur. Legal Forms 2d, Compromise and Settlement § 63:66 (compromise with one debtor-judgment to be taken against codebtors).

5A Am. Jur. Legal Forms 2d, Contributions § 69:6 (agreement by parties equally liable to contribute toward common liability).

5A Am. Jur. Legal Forms 2d, Contributions § 69:8 (optional provisions; in release-negating need for contribution between joint tortfeasors).

10A Am. Jur. Legal Forms 2d, Judgments § 157:40 (release of one of several judgment debtors).

CJS.

18 C.J.S., Contribution §§ 10, 11.

76 C.J.S., Release §§ 47, 48, 51.

JUDICIAL DECISIONS

1. In general.

2. Actions against joint or joint and several debtors.

3. —Release-nonjoinder of joint debtors.

4. —Discontinuance of suit as to some but not all.

5. Amount to be credited.

1. In general.

Statute relating to settlement or compromise in cases of joint or joint and several indebtedness is intended to encourage plaintiffs to pursue their claims, while at the same time creating an atmosphere ripe for settlement. McBride v. Chevron U.S.A., 673 So. 2d 372, 1996 Miss. LEXIS 132 (Miss. 1996), modified, 1996 Miss. LEXIS 271 (Miss. May 23, 1996).

Under statute governing compromise and settlement in cases of joint or joint and several indebtedness, when a nonsettling defendant believes it paid more than the jury’s apportioned fault, it can seek contribution from settling defendants. McBride v. Chevron U.S.A., 673 So. 2d 372, 1996 Miss. LEXIS 132 (Miss. 1996), modified, 1996 Miss. LEXIS 271 (Miss. May 23, 1996).

This provision does not apply to prevent the release of an indorser of a note from discharging subsequent indorsers. Fish Meal Co. v. Brondum, 242 Miss. 573, 135 So. 2d 825, 1961 Miss. LEXIS 594 (Miss. 1961).

While abolishing all distinctions as to remedies upon joint and several obligations, the statute does not abolish distinctions in substance between such obligations. Wisdom v. Guess Drycleaning Co., 5 F. Supp. 762, 1934 U.S. Dist. LEXIS 1885 (D. Miss. 1934).

This statute does not enable one to declare upon a joint obligation and recover upon a several one. United States v. Ewing, 19 F.2d 378, 1927 U.S. Dist. LEXIS 1146 (D. Miss. 1927).

2. Actions against joint or joint and several debtors.

This section [Code 1942, § 334] did not apply where bank receiver, by court’s authority, released first indorser on note payable to bank and sought to collect balance due from second indorser, since second indorser was not a “joint and several debtor.” Thompson v. Gore, 180 Miss. 560, 178 So. 81, 1938 Miss. LEXIS 15 (Miss. 1938).

Guarantors jointly executing guaranty were primarily and equally liable to guarantee. Enochs & Flowers, Ltd. v. Roell, 170 Miss. 44, 154 So. 299, 1934 Miss. LEXIS 111 (Miss. 1934).

A mortgagor and his grantee assuming mortgage debt are not joint debtors of the mortgagee within meaning of this statute. Gilliam v. McLemore, 141 Miss. 253, 106 So. 99, 1925 Miss. LEXIS 213 (Miss. 1925).

Where the grantee of a mortgagor recited in the deed that he assumes the mortgage debt, the grantee becomes the principal debtor with the mortgagor as his surety, upon acceptance or ratification by mortgagee. Gilliam v. McLemore, 141 Miss. 253, 106 So. 99, 1925 Miss. LEXIS 213 (Miss. 1925).

Bringing of suit by a mortgagee after material change of status of parties was not an acceptance of mortgagor’s grantee as mortgagee’s primary debtor. Gilliam v. McLemore, 141 Miss. 253, 106 So. 99, 1925 Miss. LEXIS 213 (Miss. 1925).

Proceeds from life insurance policy on husband’s life payable to wife were not exempt from judgment against her on note signed by both as joint makers, since payee had the right to proceed against either one or both of the joint makers until payment was made, notwithstanding as between husband and wife she was a mere surety. Goza v. Provine, 140 Miss. 315, 105 So. 534, 1925 Miss. LEXIS 264 (Miss. 1925).

3. —Release-nonjoinder of joint debtors.

Municipal street paving contractor was not necessary party to suit on his surety bonds for amount due complainant for cement supplied to contractor. Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 173 Miss. 164, 158 So. 924, 1935 Miss. LEXIS 191 (Miss. 1935).

In action on partnership notes, one partner was not an indispensable party either to rendition of personal judgment against codefendants or to order directing sale of collateral, since defendants’ obligation was joint and several, and judgment against some of them would not affect plaintiff’s right as to others unless satisfaction was obtained. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

In a suit in chancery on a guardian’s bond against the heirs of a deceased surety thereon, the nonjoinder of the other sureties on the bond or the principal or his legal representative, is not cause for demurrer. Horne v. Tartt, 76 Miss. 304, 24 So. 971, 1898 Miss. LEXIS 123 (Miss. 1898).

In such a suit the heirs of a deceased surety and those holding under him the property of the decedent, are proper parties where the estate has been finally administered. Horne v. Tartt, 76 Miss. 304, 24 So. 971, 1898 Miss. LEXIS 123 (Miss. 1898).

4. —Discontinuance of suit as to some but not all.

Guarantee having sued all guarantors, could properly discontinue action against one without thereby involving res judicata doctrine. Enochs & Flowers, Ltd. v. Roell, 170 Miss. 44, 154 So. 299, 1934 Miss. LEXIS 111 (Miss. 1934).

Discontinuance of a suit against one of two jointly and severally liable guarantors did not affect a creditor’s right to hold the remaining guarantor liable for the amount due and unpaid. Woods-Tucker Leasing Corp. v. Kellum, 641 F.2d 210, 31 U.C.C. Rep. Serv. (CBC) 188, 1981 U.S. App. LEXIS 18778 (5th Cir. Miss. 1981).

5. Amount to be credited.

Release of some signers of accommodation note on adequate consideration held to entitle others only to have pro rata shares of released persons credited on note. Yazoo Delta Mortg. Co. v. Harlow, 150 Miss. 105, 116 So. 441, 1928 Miss. LEXIS 117 (Miss. 1928).

§ 85-5-3. Judgment against one debtor does not affect rights against others.

In any action founded on a joint or joint and several bond, covenant, bill of exchange, promissory note, or other contract, or on a contract or liability of copartners, it shall be lawful to sue any one or more of the parties liable on such bond, covenant, bill of exchange, promissory note, or other contract or liability; and separate suits may be brought against the representatives of such of the parties as have died, or joint suits may be brought against the representatives of the deceased party and those who are alive and bound therein; and the rendition of judgment against one or more joint or joint and several debtors shall not affect any right of the plaintiff as to the other parties, unless satisfaction has been obtained.

HISTORY: Codes, 1880, § 1134; 1892, § 2353; 1906, § 2683; Hemingway’s 1917, § 2170; 1930, § 2028; 1942, § 335.

Cross References —

Bringing suits before justices of the peace against two or more defendants who are jointly or jointly and severally liable, see §11-9-103.

Joint liability of sureties on a claimant’s bond for trial of right of property, see §11-23-21.

Attachment against one or more of joint debtors, see §11-33-3.

Attachments against nonresidents jointly indebted, see §11-33-7.

Joint and several liability on a negotiable instrument, see §75-3-118.

Suits on indorsed bills and notes, see §75-13-3.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Judgments §§ 495 et seq.

59 Am. Jur. 2d, Parties §§ 153 et seq.

15 Am. Jur. Pl & Pr Forms (Rev) Judgments, Forms 301, 302 (judgments against joint debtors and joint and several debtors).

CJS.

49 C.J.S., Judgments §§ 30 et seq.

50 C.J.S., Judgments §§ 758, 759.

JUDICIAL DECISIONS

1. In general.

2. Actions against joint or joint and several debtors.

3. —Pleadings.

4. —Necessary and proper parties.

5. —Discontinuance as to some but not all.

6. —Proof.

7. —Judgment.

8. Settlements.

1. In general.

This provision does not apply to prevent the release of an indorser of a note from discharging subsequent indorsers. Fish Meal Co. v. Brondum, 242 Miss. 573, 135 So. 2d 825, 1961 Miss. LEXIS 594 (Miss. 1961).

While abolishing all distinctions as to remedies upon joint and several obligations, the statute does not abolish distinction in substance between such obligations. Wisdom v. Guess Drycleaning Co., 5 F. Supp. 762, 1934 U.S. Dist. LEXIS 1885 (D. Miss. 1934).

Statute relating to liability of surety on sheriff’s bond held not in conflict with statute relating to recovery against sureties generally. State ex rel. Weems v. United States Fidelity & Guaranty Co., 157 Miss. 740, 128 So. 503, 1930 Miss. LEXIS 318 (Miss. 1930).

Statute abolishes common law rule that all persons jointly liable on contract, express or implied, must be sued jointly. J. B. White's Garage, Inc. v. Boyd, 149 Miss. 383, 115 So. 334, 1928 Miss. LEXIS 22 (Miss. 1928).

This section [Code 1942, § 335] abolishes all distinctions in remedies upon joint and several obligations and makes them all joint and several. Steen v. Finley, 25 Miss. 535, 1853 Miss. LEXIS 24 (Miss. 1852).

2. Actions against joint or joint and several debtors.

Contract for legal services between attorney and clients for recovery of property whereby clients assigned percentage of recovery to attorney in payment for services is considered separable from invalid contract by wife to pay attorney for services rendered by him for wife in recovery of her separate property, and hence, interest assigned to attorney by clients was liable to be subjected to claim of bank to whom attorney had pledged fee in consideration of renewal of a note. Martin v. First Nat'l Bank, 176 Miss. 338, 164 So. 896, 1936 Miss. LEXIS 96 (Miss. 1936).

Proceeds from life insurance policy on husband’s life, payable to wife, were not exempt from judgment against her on note signed by both as joint makers, since payee had the right to proceed against either one or both of the joint makers until payment was made, notwithstanding as between husband and wife she was a mere surety. Goza v. Provine, 140 Miss. 315, 105 So. 534, 1925 Miss. LEXIS 264 (Miss. 1925).

Under this section [Code 1942, § 335] the separate property of a nonresident member of a firm domiciled in this state may be attached by firm creditors on the ground of such nonresidence, notwithstanding statutory provision making partnership property liable to attachment where grounds, other than nonresidence, exist against either partner. Cohen v. Gamble, 71 Miss. 478, 15 So. 236, 1893 Miss. LEXIS 103 (Miss. 1893).

3. —Pleadings.

This provision does not enable one to declare upon a joint obligation and recover upon a several one. United States v. Ewing, 19 F.2d 378, 1927 U.S. Dist. LEXIS 1146 (D. Miss. 1927); Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830, 1892 Miss. LEXIS 40 (Miss. 1892).

4. —Necessary and proper parties.

In a proceeding in chancery court to enforce a bond for child support against one surety thereon, a co-surety was not a necessary party. Box v. McKnight, 215 So. 2d 409, 1968 Miss. LEXIS 1349 (Miss. 1968).

Municipal street paving contractor was not a necessary party to suit on his surety bonds for amount due complainant for cement supplied to contractor. Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 173 Miss. 164, 158 So. 924, 1935 Miss. LEXIS 191 (Miss. 1935).

In action on partnership notes, one partner was not an indispensable party either to rendition of personal judgment against codefendants or to order directing sale of collateral, since defendants’ obligation was joint and several, and judgment against some of them would not affect plaintiff’s right as to others unless satisfaction was obtained. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

Where county and town jointly made contract for grading street, landowner could sue contractor and town for damages for change of grade without joining county. J. B. White's Garage, Inc. v. Boyd, 149 Miss. 383, 115 So. 334, 1928 Miss. LEXIS 22 (Miss. 1928).

In an action on administrator’s bond for misappropriation of funds after final decree plaintiff need not make the administrator a party defendant. Davis v. State, 118 Miss. 577, 79 So. 764, 1918 Miss. LEXIS 98 (Miss. 1918).

5. —Discontinuance as to some but not all.

Where the jury found in an action against joint debtors that the attachment on a truck was rightfully sued out but that a garnishment against the bank account of one of the defendants was wrongfully sued out, the dismissal of the garnishment did not release the sureties from liability on their bond to produce the truck, inasmuch as the defendant against whom the garnishment was dismissed was not discharged as a party to the action as to the attachment issue but only as to the debt issue in which the sureties had no interest. Davis v. Shemper, 210 Miss. 201, 50 So. 2d 143, 1951 Miss. LEXIS 267 (Miss. 1951).

Guarantors jointly executing guaranty held primarily and equally liable to guarantee who, having sued all guarantors, could properly discontinue action against one without thereby involving res judicata doctrine. Enochs & Flowers, Ltd. v. Roell, 170 Miss. 44, 154 So. 299, 1934 Miss. LEXIS 111 (Miss. 1934).

Under the provisions of this statute as formerly enacted that “every joint bond, covenant, bill, or promissory note” shall be deemed and construed to have the same effect in law as a joint and several bond, covenant, bill, or promissory note, and that it shall be lawful to sue out process and proceed to judgment against any one of the obligors, covenantors or drawers of such bond, covenant, bill, or promissory note, in the same manner as if the same were joint and several,“ the same license which gave to a party the power of instituting a suit against one or more of the parties to an undertaking carries with it by necessary implication the right to prosecute or discontinue it in the same sense and to the same extent and degree. Coffee v. Planters Bank of Tennessee, 54 U.S. 183, 14 L. Ed. 105, 1851 U.S. LEXIS 846 (U.S. 1851).

6. —Proof.

Where defendant sued as a partner denies the existence of the partnership under oath, it becomes necessary that plaintiff prove such partnership. Wise v. Cobb, 135 Miss. 673, 100 So. 189, 1924 Miss. LEXIS 58 (Miss. 1924).

7. —Judgment.

The obligations of partners are joint and several and a judgment may be rendered against one partner where the suit is against both, and a judgment against all partners where the evidence authorizes judgment against only one will be reversed in part and affirmed in part. Wise v. Cobb, 135 Miss. 673, 100 So. 189, 1924 Miss. LEXIS 58 (Miss. 1924).

Under this section [Code 1942, § 335] suit may be brought against one or more persons jointly and severally liable; partners are thus liable and an error in rendering judgment against several partners, two of whom were not served and did not appear, will not require reversal of the judgment as to the partner who was served, for the reason that one appealing party is not entitled to a reversal for an error as to another. Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570, 1917 Miss. LEXIS 247 (Miss. 1917).

A judgment against one partner unsatisfied is not a bar to an action against another partner. Hyman, Lichenstein & Co. v. Max Stadler & Co., 63 Miss. 362, 1885 Miss. LEXIS 81 (Miss. 1885); Scharff v. Noble, 67 Miss. 143, 6 So. 843, 1889 Miss. LEXIS 32 (Miss. 1889).

8. Settlements.

Under Mississippi law, nonsettling defendant, which was found 50% liable for patient’s death in medical malpractice action, was responsible for $100,000 of $200,000 verdict and was not entitled to credit for $650,000 settlement which plaintiff had reached during trial with another defendant; crediting nonsettling defendant with settlement would undermine intention of jury to hold nonsettling defendant accountable and would violate public policy. Krieser v. Baptist Mem. Hospital-North Miss., 984 F. Supp. 463, 1997 U.S. Dist. LEXIS 20585 (N.D. Miss. 1997), aff'd, in part, modified, 166 F.3d 736, 1999 U.S. App. LEXIS 1642 (5th Cir. Miss. 1999).

§ 85-5-5. Repealed.

Repealed by Laws, 1989, ch. 311, § 6, eff from and after July 1, 1989.

[Codes, 1942, § 335.5; Laws, 1952, ch. 259]

Editor’s Notes —

Former §85-5-5 related to contribution between joint tort feasors. For comparable provisions, see §85-5-7.

§ 85-5-7. Limitation of joint and several liability for damages caused by two or more persons; contribution between joint tortfeasors; determination of percentage of fault; liability of medical defendants for economic and noneconomic damages.

  1. As used in this section, “fault” means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn. “Fault” shall not include any tort which results from an act or omission committed with a specific wrongful intent.
  2. Except as otherwise provided in subsection (4) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer’s employee or a principal and the principal’s agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.
  3. Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
  4. Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.
  5. In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault without regard to whether the joint tort-feasor is immune from damages. Fault allocated under this subsection to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor.
  6. Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.

HISTORY: Laws, 1989, ch. 311, § 1; Laws, 2002, 3rd Ex Sess, ch. 2, § 4; Laws, 2002, 3rd Ex Sess, ch. 4, § 3; Laws, 2004, 1st Ex Sess, ch. 1, § 6, eff from and after September 1, 2004, and applicable to all causes of action filed on or after September 1, 2004.

Editor’s Notes —

Section 7 of ch. 311, Laws of 1989, effective from and after July 1, 1989, provides as follows:

“SECTION 7. The provisions of this act shall apply only to causes of action accruing on or after July 1, 1989.”

Laws of 2004, 1st ex. sess., ch. 1, § 20, provides:

“SECTION 20. Sections 8 through 15 of this act shall take effect and be in force from and after January 1, 2007; the remainder of this act shall take effect and be in force from and after September 1, 2004, and Sections 1 through 7 of this act shall apply to all causes of action filed on or after September 1, 2004.

Amendment Notes —

The first 2002 amendment, 3rd Ex Sess ch. 2, effective January 1, 2003, substituted “in subsections (6) and (8) of this section” for “in subsection (6) of this section” in (2); added present (8) and redesignated former (8), as present (9).

The second 2002 amendment, 3rd Ex Sess ch. 4, effective January 1, 2003, substituted “subsections (2), (6) and (8)” for “subsections (2) and (6)” in the first sentence of (3); and substituted “in any action involving joint tort-feasor” for “in any action against a licensed physician, psychologist, osteopath, dentist, nurse, nurse practitioner, physician assistant, pharmacist, podiatrist, optometrist, chiropractor, hospital, institution for the aged or infirm, or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services which involve joint tort-feasors” in (8).

The 2004 amendment, 1st Ex Sess, ch. 1, deleted former (2), (4), and (8), and renumbered the remaining subsections accordingly; in (2), substituted “subsection (4) of this section” for “subsections (2), (6) and (8) of this section”; and rewrote (5).

RESEARCH REFERENCES

ALR.

Voluntary payment into court of judgment against one joint tortfeasor as release of others. 40 A.L.R.3d 1181.

What statute of limitations applies to action for contribution against joint tortfeasor. 57 A.L.R.3d 927.

Validity and effect of agreement with one cotortfeasor setting aside his maximum liability and providing for reduction or extinguishment thereof relative to recovery against nonagreeing cotortfeasor. 65 A.L.R.3d 602.

Right of tortfeasor to contribution from joint tortfeasor who is spouse or otherwise in close familial relationship to injured party. 25 A.L.R.4th 1120.

Comparative fault: calculation of net recovery by applying percentage of plaintiff’s fault before or after subtracting amount of settlement by less than all joint tortfeasors. 71 A.L.R.4th 1108.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment. 72 A.L.R.4th 231.

Release of one joint tortfeasor as discharging liability of others under Uniform Contribution Among Tortfeasors Act and other statutes expressly governing effect of release. 6 A.L.R.5th 883.

Construction and Application of Longshore and Harbor Workers’ Compensation Act (LHWCA) – Supreme Court Cases. 72 A.L.R. Fed. 2d 1.

Right to contribution in federal antitrust case. 47 A.L.R. Fed. 712.

Am. Jur.

18 Am. Jur. 2d, Contribution §§ 39 et seq.

Law Reviews.

Jackson, Legislative reform of statutes of limitations in Mississippi: proposed interpretations, possible problems. 9 Miss. College L. R. 231, Spring 1989.

Williams, 1989 tort “reform” in Mississippi: modification of joint and several liability and the adoption of comparative contribution. 13 Miss. C. L. Rev. 133, Fall, 1992.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

Symposium on Mississippi Rules of Civil Procedure: Joinder of Claims and Parties-Rules 13, 14, 17 and 18. 52 Miss. L. J. 37, March 1982.

Twyner, A Survey and Analysis of Comparative Fault in Mississippi. 52 Miss. L. J. 563, September 1982.

Wade, Multiple Tortfeasor Liability in Products Liability Suits. 55 Miss. L. J. 683, December 1985.

Comment, Fair Apportionment of Fault Among Joint Tortfeasors-A Mississippi Perspective. 55 Miss. L. J. 709, December 1985.

Modified Joint and Several Liability in Mississippi: The Absent Settling Tortfeasor and the Immune Employer, 70 Miss. L.J. 821 (2000).

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

Taming an Elephant: A Closer Look at Mass Tort Screening and the Impact of Mississippi Tort Reforms, 26 Miss. C. L. Rev. 253, 2006/2007.

JUDICIAL DECISIONS

I. Under §85-5-7.

1. In general.

1.5. Applicaton.

2. Burden of proof.

3. Instructions to jury.

3.5. Verdict forms.

4. Parties.

5. Joint and several damages.

6. Miscellaneous.

7-10. [Reserved for future use.]

II. Under former §85-5-5.

11. In general.

12. Right to indemnification.

13. Miscellaneous.

I. Under § 85-5-7.

1. In general.

Trial court’s finding that the city was 100 % liable for driver’s injuries, caused when the driver was involved in a motor vehicle accident with a police car during a pursuit, was supported by sufficient evidence, including testimony that the police car did not have its lights or sirens on when entering the intersection. City of Jackson v. Spann, 4 So.3d 1029, 2009 Miss. LEXIS 5 (Miss. 2009).

Mississippi law does not require apportionment of fault, Miss. Code. Ann. §85-5-7(1), (7), to a plaintiff absent evidence sufficient to show, at least, negligence on the plaintiff’s part, Miss. Code. Ann. §11-7-15. Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 2008 U.S. App. LEXIS 19168 (5th Cir. Miss. 2008).

Trial court improperly apportioned liability in a case in which a lessor sought to recover for damages to his building in a construction accident, finding the lessee 50 percent at fault, a general contractor 30 percent at fault, and a sub-contractor 20 percent at fault under Miss. Code Ann. §85-5-7; the trial court improperly found that the lessee negligently performed its duties as architect because the construction contract was silent as to the duties of an architect and, absent a delineation of such duties, no duty to warn could be imputed to the lessee. Family Dollar Stores of Miss., Inc. v. Montgomery, 946 So. 2d 426, 2006 Miss. App. LEXIS 929 (Miss. Ct. App. 2006).

Where a mother filed suit against a school district and a bus driver to recover damages after the mother’s child was hit by a school bus, Miss. Code Ann. §85-5-7(7) did not apply because the case did not involve joint tortfeasors; hence, the trial court did not err in failing to allocate fault to the mother because the mother had dropped the child off for school across the street from the school. Jackson Pub. Sch. Dist. v. Smith, 875 So. 2d 1100, 2004 Miss. App. LEXIS 598 (Miss. Ct. App. 2004).

Trial court properly applied a credit against judgment for amount received in settlement from entities not party to the litigation because the case involved multiple defendants, all alleged to have acted purposely and in concert to injure a customer by depriving him of the rightful possession of his vehicle and forcing him into a situation where he felt compelled to purchase a replacement vehicle on terms he could not afford. Brown v. N. Jackson Nissan, Inc., 856 So. 2d 692, 2003 Miss. App. LEXIS 891 (Miss. Ct. App. 2003).

Pursuant to the Mississippi Supreme Court, Miss. Code Ann. §85-5-7 provides for contribution only in cases where a joint judgment is obtained among the parties. Travelers Prop. & Cas. Co. v. City of Greenwood Fire Dep't, 441 F. Supp. 2d 776, 2006 U.S. Dist. LEXIS 53914 (N.D. Miss. 2006).

Though the Mississippi Department of Transportation was not immune from suit, as the trial court properly found that a five to six inch drop-off on the shoulder of a road was a dangerous condition that was not obvious, which was created by the negligence of the Department and of which the Department knew but failed to warn against, the trial court erred by not assessing some degree of fault to plaintiff driver, who had been obliged to exercise vigilant caution when she learned the road was under construction. Miss. DOT v. Trosclair, 851 So. 2d 408, 2003 Miss. App. LEXIS 666 (Miss. Ct. App. 2003).

Allocation of fault to immune employers is consistent with Miss. Code Ann. §85-5-7 and is required, provided that they are not held liable for damages. Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107, 2003 Miss. LEXIS 135 (Miss. 2003).

To the extent that Accu-Fab & Construction, Inc. v. Ladner, 778 So. 2d 766 (Miss. 2001), may be construed as stating that immune parties may not be assessed fault (as opposed to liability) under Miss. Code Ann. §85-5-7, that opinion is overruled. Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107, 2003 Miss. LEXIS 135 (Miss. 2003).

In a wrongful death action, the trial court erred by allocating the defendants’ liability for the fault attributed to an immune employer as well as their joint and several liability to reach the 50 percent goal proportionately in accordance with the jury allocation of fault to them respectively. Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107, 2003 Miss. LEXIS 135 (Miss. 2003).

The trial court erred in applying Miss. Code Ann. §85-5-7(2)-(3) (1999) as the statute abolished joint and several liability when a defendant was more than 50 percent liable, and the driver and the manufacturer were found to be 54 percent liable. Classic Coach, Inc. v. Johnson, 823 So. 2d 517, 2002 Miss. LEXIS 243 (Miss. 2002), amended, 2003 Miss. LEXIS 81 (Miss. Feb. 20, 2003).

Trial court erroneously instructed the jury to allocate fault to a statutory employer, and the settlement reached in a wrongful death/product liability case should not have been credited before the proportionate damage amounts were calculated respecting the non-settling defendants. Yale Materials Handling Corp. v. Brandon, 2002 Miss. LEXIS 180 (Miss. May 23, 2002), dismissed, op. withdrawn, 2003 Miss. LEXIS 21 (Miss. Jan. 16, 2003).

Because an employer and an employee were to be considered one defendant when the liability was caused by the employee, as provided by Miss. Code Ann. §85-5-7(3), it was not reversible error for a jury instruction not to allow the jury to apportion fault between those parties pursuant to Miss. Code Ann. §85-5-7(7); in any event, two jury instructions taken together gave the jury an opportunity to find for those parties if it was so inclined. Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 2002 Miss. LEXIS 208 (Miss. 2002).

The statute’s apportionment provision only applies to damages incurred due to negligence; the statute does not apply to a breach of contract. Cooper Indus. v. Tarmac Roofing Sys., 276 F.3d 704, 2002 U.S. App. LEXIS 173 (5th Cir. Miss. 2002).

The collective joint and several liability of all defendants contributing to a loss is 50 percent; in other words, the statute does not authorize a prevailing plaintiff to recover 50 percent of his award from each defendant. Narkeeta Timber Co. v. Jenkins, 777 So. 2d 39, 2000 Miss. LEXIS 235 (Miss. 2000).

Any tortfeasor, even absent ones, that contributed to the injury at issue must be considered by the jury when apportioning fault. Peterson v. Ladner, 785 So. 2d 290, 2000 Miss. App. LEXIS 531 (Miss. Ct. App. 2000).

Responsibility may not be allocated between intentional and negligent participants in the events that caused injury; the statute does not contemplate that a willful contribution to an injury be allocated just as is negligence. Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131, 1999 Miss. App. LEXIS 315 (Miss. Ct. App. 1999).

Participants in an event who for some reason are not joined in the litigation, so-called “phantom defendants,” can nonetheless have their portion of fault assigned to them; a jury may not be instructed to consider only the parties actually sued, else the defendants who are present have been unfairly denied the benefits of the system of comparative fault. Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131, 1999 Miss. App. LEXIS 315 (Miss. Ct. App. 1999).

In an action alleging conversion and violations of state securities laws, the trial court did not deny the defendants of their right to allocate liability pursuant to this section when it refused to allow the defendant to proceed simultaneously with its claims against others and failed to allow joinder of an individual. First Investors Corp. v. Rayner, 738 So. 2d 228, 38 U.C.C. Rep. Serv. 2d (CBC) 963, 1999 Miss. LEXIS 172 (Miss. 1999).

The term “party,” as used in subsection (7) of this section, refers to any participant to an occurrence that gives rise to a lawsuit, and not merely the parties to a particular lawsuit or trial. Estate of Hunter v. GMC, 729 So. 2d 1264, 1999 Miss. LEXIS 18 (Miss. 1999).

Where fault has been apportioned between settling and non-settling defendants, then, notwithstanding the settlement, the non-settling defendant remains liable for the amount of damages allocated to him in direct proportion to his percentage of fault. Krieser v. Hobbs, 166 F.3d 736, 1999 U.S. App. LEXIS 1642 (5th Cir. Miss. 1999).

The term “fault,” as used in subsection (1), does not include intentional torts; thus, in an action against a store for injuries sustained in a crime which was allegedly caused by its failure to provide adequate security in its parking lot, the store’s percentage of fault was 100 percent since the persons who committed the crime had no “fault.” Whitehead v. Food Max, Inc., 163 F.3d 265, 1998 U.S. App. LEXIS 31380 (5th Cir. Miss. 1998).

Department of Transportation had sovereign immunity on claim for indemnification by ambulance service that was sued for injuries sustained by motorist when oncoming ambulance struck her car at intersection, allegedly after department’s flagman flagged her to proceed with left turn. Mississippi Transp. Comm'n v. Jenkins, 699 So. 2d 597, 1997 Miss. LEXIS 421 (Miss. 1997).

Sovereign immunity applies to actions where state is possible joint tort-feasor. Mississippi Transp. Comm'n v. Jenkins, 699 So. 2d 597, 1997 Miss. LEXIS 421 (Miss. 1997).

It was not necessary to join Mississippi city as “phantom party” defendant in suit by city employee alleging injury as result of corporation’s release of certain substances into city sewer system, so that jury could fully apportion fault under §85-5-7 even though plaintiff could not sue city directly and corporation could not seek contribution from city, as result of mandate of §71-3-9. Statute did not contain clear command that alleged joint-tortfeasors be joined in such a way. White v. Esmark Apparel, 788 F. Supp. 907, 1992 U.S. Dist. LEXIS 5771 (N.D. Miss. 1992), aff'd, in part, 44 F.3d 1005, 1995 U.S. App. LEXIS 772 (5th Cir. Miss. 1995).

Employer who is immune to tort action by employee under workers’ compensation law is not rendered amenable to such suit by §85-5-7 which requires apportionment of liability among joint tortfeasors; subsection (8) specifically precludes this section from creating new cause of action. Stringfellow v. Reed, 739 F. Supp. 324, 1990 U.S. Dist. LEXIS 8239 (S.D. Miss. 1990).

1.5. Applicaton.

Trial court properly applied this section and Miss. Code Ann. §11-1-60(2)(b) to the damages award, finding that the sandblasting company was liable for the damages apportioned to it, which were below the $1 million cap. Miss. Valley Silica Co. v. Barnett, 227 So.3d 1102, 2016 Miss. App. LEXIS 548 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 401 (Miss. 2017).

2. Burden of proof.

Supreme Court agreed that a physician in a medical malpractice suit raised an affirmative defense regarding the apportionment of damages, but failed to present sufficient evidence to create a genuine issue of material fact that would have attributed negligence to a third party. A partial summary judgment for the wife, who was the decedent’s survivor, was proper. Eckman v. Moore, 876 So. 2d 975, 2004 Miss. LEXIS 287 (Miss. 2004).

In a wrongful death case, a court properly granted partial summary judgment to plaintiff on the issue of apportionment where the doctor’s rebuttal evidence did not indicate any fault attributable to a third party. Eckman v. Moore, 2003 Miss. LEXIS 552 (Miss. Oct. 23, 2003), sub. op., 876 So. 2d 975, 2004 Miss. LEXIS 287 (Miss. 2004).

3. Instructions to jury.

Circuit court did not err, pursuant to Miss. Code Ann. §§85-5-7(5) and63-3-805, in refusing an apportionment-of-fault jury instruction because the uncontested evidence presented at trial demonstrated that it was one motorist’s negligence that was the sole proximate cause of the accident at an intersection and the injuries sustained by the other motorist and the other motorist’s spouse. Dunnam v. Abney, 137 So.3d 876, 2013 Miss. App. LEXIS 770 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 242 (Miss. 2014).

Finding in favor of a psychiatrist in a negligence action after the decedent killed herself was proper, in part because, although the representative argued that the trial court should have given the jury an apportionment instruction pursuant to Miss. Code Ann. §85-5-7, she had previously stated in a discovery response that no heir had exacerbated the decedent’s mental illness. In arguing for an apportionment instruction, the representative provided no other theory as to how an heir could have been held partially responsible for the suicide and the representative’s discovery response was binding on her. Young v. Guild, 7 So.3d 251, 2009 Miss. LEXIS 193 (Miss. 2009).

In a personal injury products liability lawsuit, when the jury instructions that were given were read as a whole, there was no error by the trial court regarding the form of the verdicts. Proper apportionment instructions were given to the jury, Miss. Code Ann. §85-5-7(7) (now found at §85-5-7(5)). Goodyear Tire & Rubber Co. v. Kirby, 156 So.3d 281, 2009 Miss. App. LEXIS 221 (Miss. Ct. App. 2009).

In a suicide wrongful death case against a doctor, plaintiff waived her claim that the court should have given the jury an apportionment instruction due to the fact that the doctor put forth evidence that the decedent’s husband and other family members caused the decedent to commit suicide because plaintiff stated in a discovery response that no heir had exacerbated the decedent’s mental illness, and plaintiff provided no other theory as to how an heir could be held partially responsible for the suicide. Young v. Guild, 2008 Miss. LEXIS 548 (Miss. Oct. 30, 2008), sub. op., op. withdrawn, 7 So.3d 251, 2009 Miss. LEXIS 193 (Miss. 2009).

In a medical malpractice case stemming from the death of a patient who was misdiagnosed with cancer and who succumbed from an overdose of pain medication administered by hospice personnel in accordance with the instructions of defendant doctor, the trial court did not err in failing to instruct the jury on the allocation of fault because the doctor failed to establish that defendant medical center, a settling defendant, actually took part in the doctor’s decision to switch the patient’s medication or to establish the dosage. Causey v. Sanders, 998 So. 2d 393, 2008 Miss. LEXIS 520 (Miss. 2008).

In a negligence case, the trial court erred in not instructing the jury to apportion some fault to an employer, even though the employer was immune from liability under the workers’ compensation law. Coho Res., Inc. v. Chapman, 913 So. 2d 899, 2005 Miss. LEXIS 266 (Miss. 2005).

Where a car collision was caused when the driver of a commercial vehicle swerved to avoid hitting an unknown driver, the jury was directed to allocate fault between the drivers under Miss. Code Ann. §85-5-7; the jury’s verdict for the commercial driver was supported by substantial evidence, because reasonable minds could have differed as to liability. White v. Stewman, 932 So. 2d 27, 2006 Miss. LEXIS 315 (Miss. 2006).

Jury was obligated to determine a minor driver’s percentage of fault, who had reached a settlement, irrespective of his status as a party at the time of trial; jury was entitled to know that, up until the settlement, plaintiffs and defendants were claiming that the minor driver was at fault for the accident and brought suit against him seeking a recovery for the same. Smith v. Payne, 839 So. 2d 482, 2002 Miss. LEXIS 13 (Miss. 2002).

It was reversible error for the trial court to instruct the jury in such a manner so as to refuse to allow it to consider the negligence of a settling defendant in apportioning fault for injuries sustained by the plaintiff in an accident between an animal drawn wagon and a motor vehicle. Peterson v. Ladner, 2000 Miss. App. LEXIS 303 (Miss. Ct. App. June 27, 2000), op. withdrawn, sub. op., 785 So. 2d 290, 2000 Miss. App. LEXIS 531 (Miss. Ct. App. 2000).

The instruction offered by the plaintiffs for determining whether the defendant’s negligence in any way caused the plaintiff’s injuries satisfied this section since the instruction merely stated that the jury should find that the plaintiff was entitled to recover from the defendant if it found that the defendant’s negligence in any way caused her injuries. Fielder v. Magnolia Bev. Co., 757 So. 2d 925, 1999 Miss. LEXIS 165 (Miss. 1999).

3.5. Verdict forms.

Trial court’s failure to use verdict forms proposed by a law firm, which would have permitted an allocation of fault to each party under the comparative fault law, was reversible error in the contractor’s action, alleging legal malpractice and related claims, as the evidence would have permitted an allocation of fault to the various parties. Baker & McKenzie, LLP v. Evans, 123 So.3d 387, 2013 Miss. LEXIS 548 (Miss. 2013).

4. Parties.

Plaintiff was not at fault, Miss. Code. Ann. §85-5-7(1), (7), because it “assumed the risk” associated with bonding a project by making a decision to proceed with a “high risk surety” situation; plaintiff could not have fully appreciated or voluntarily assumed the complete risk of its decision to bond a project; therefore, plaintiff could not have its recovery reduced based on assumption of risk theory. Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 2008 U.S. App. LEXIS 19168 (5th Cir. Miss. 2008).

Wrongful death action against medical defendants and a casino should not have been severed because such severance violated the requirement in Miss. Code Ann. §11-7-13 of “one suit for the same death,” and was also inconsistent with Miss. Code Ann. §85-5-7. Adams v. Baptist Mem'l Hospital-Desoto, Inc., 965 So. 2d 652, 2007 Miss. LEXIS 472 (Miss. 2007).

Under Mississippi’s center of gravity analysis as to how the conduct of receivers of defunct insurance companies affected a corporation’s liability, N.Y. C.P.L.R. § 1601 was applicable rather than Miss. Code Ann. §85-5-7; thus, the corporation was not entitled to apportionment of fault for negligence-based claims brought by the receivers because the injury occurred primarily in New York as the corporation’s headquarters and Mississippi had little or no interest in protecting the nonresident corporation. Dale v. ALA Acquisitions I, Inc., 434 F. Supp. 2d 423, 2006 U.S. Dist. LEXIS 37915 (S.D. Miss. 2006).

Because an employer and an employee were to be considered one defendant when the liability was caused by the employee, as provided by Miss. Code Ann. §85-5-7(3), it was not reversible error for a jury instruction not to allow the jury to apportion fault between those parties pursuant to Miss. Code Ann. §85-5-7(7); in any event, two jury instructions taken together gave the jury an opportunity to find for those parties if it was so inclined. Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 2002 Miss. LEXIS 208 (Miss. 2002).

In the absence of a contractual relationship between a mortgage borrower’s insurer and a mortgage lender’s insurer, Miss. Code Ann. §85-5-7 barred the borrower’s insurer from seeking contribution from the lender’s insurer of pro rata amounts paid by the borrower’s insurer for fire damage to the borrower’s property. Hill v. General Ins. Co. of Am., 456 F. Supp. 2d 757, 2006 U.S. Dist. LEXIS 59179 (N.D. Miss. 2006).

Trial court did not abuse its discretion in severing an employee prior to a wrongful death trial; even had the employee not been severed, the employee would not have had any separate liability apart from the employer because an employee was considered one with the employer pursuant to Miss. Code Ann. §85-5-7(3), which prevented the apportionment of damages between them. Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 2002 Miss. LEXIS 208 (Miss. 2002).

Fault may not be allocated to employers who are immune from liability by virtue of the workers’ compensation law. Mack Trucks, Inc. v. Tackett, 2001 Miss. LEXIS 40 (Miss. Feb. 22, 2001), op. withdrawn, sub. op., 2001 Miss. LEXIS 285 (Miss. Oct. 25, 2001).

In an action against a general contractor and a subcontractor arising from the death of an iron worker while constructing a casino on a barge on a navigable waterway, the defendants were not entitled to have another subcontractor that employed the decedent considered as a party for apportionment of damages since the decedent’s employer was in the unique position of having no fault pursuant to the federal Longshore and Harbor Workers’ Compensation Act. Accu-Fab & Constr., Inc. v. Ladner by & Through Ladner, 970 So. 2d 1276, 2000 Miss. App. LEXIS 111 (Miss. Ct. App. 2000), aff'd, 778 So. 2d 766, 2001 Miss. LEXIS 38 (Miss. 2001).

5. Joint and several damages.

Under Mississippi’s Dram Shop Act, Miss. Code Ann. §67-3-73(4) (2005), which required proof that a customer was served alcohol when he was visibly intoxicated, a casino was liable for damages from the customer’s car accident as the expert of the wrongful-death heirs testified that the driver’s blood alcohol content was high enough that trained personnel should have spotted the driver’s intoxication. However, under Miss. Code Ann. §85-5-7(3), which was in effect when the suit was filed, joint and several liability was limited to fifty percent of recoverable damages. Robinson Prop. Group, Ltd. P'ship v. McCalman, 51 So.3d 946, 2011 Miss. LEXIS 19 (Miss. 2011).

In light of Fontenot and Miss. Code Ann. §85-5-7(5), Mississippi law supports allocation of fault to immune parties, such as an employer in a non-vessel the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.S. § 901 et seq., claim. Jowers v. Lincoln Elec. Co., 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

Tire manufacturer’s claims against a dealer and guarantors for fraud, negligent misrepresentation, and breach of contract were dismissed rather than stayed under 9 U.S.C.S. § 3 pending arbitration or mediation because the fraud claims allegedly arose from or were directly related to the parties relationship and within the scope of an arbitration agreement and allegations against the guarantors were based on joint and several liability under Miss. Code Ann. §85-5-7(4) and their unconditional guarantees. Bridgestone Firestone N. Am. Tire, LLC. v. J&J Tire Co., LLC., 602 F. Supp. 2d 770, 2009 U.S. Dist. LEXIS 8594 (S.D. Miss. 2009).

Court erred by failing to address the apportionment of fault between joint tortfeasors in a suit by plaintiffs against the city for injuries sustained during a police chase because it was unclear whether the court assessed plaintiffs’ total damages in an amount greater than the judgment, and accordingly reduced the award by a percentage of fault assessed to the chase suspect, or if it determined the total damages suffered by plaintiffs and assessed no percentage of fault to the suspect. City of Ellisville v. Richardson, 913 So. 2d 973, 2005 Miss. LEXIS 275 (Miss. 2005).

Where defendant hospital was dismissed from a medical negligence suit on the basis of the statute of limitations, the jury was permitted to consider the hospital’s negligence in rendering its decision regarding the fault of the remaining defendants. The trial court did not err in denying plaintiffs’ motion for directed verdict regarding the allocation of fault. Blailock v. Hubbs, 919 So. 2d 126, 2005 Miss. LEXIS 360 (Miss. 2005).

Even though an employer of a decedent was immune from suit, it was proper to allocate a portion of the fault to the employer in an action against an electric company for wrongful death by electrocution from the company’s power lines. Ware v. Entergy Miss., Inc., 887 So. 2d 763, 2003 Miss. LEXIS 876 (Miss. 2003).

Statute saved for the injured plaintiff joint and several collection rights to the extent of allowing recovery of fifty percent of the damages; it preserved immunities and defenses and left for interpretation the question of which if any nonparties could be considered for allocation of fault. Mack Trucks, Inc. v. Tackett, 2001 Miss. LEXIS 285 (Miss. Oct. 25, 2001), op. withdrawn, sub. op., 841 So. 2d 1107, 2003 Miss. LEXIS 135 (Miss. 2003).

In an action arising from a motor vehicle accident in which the trial court found that the plaintiff, the defendant, and two persons not party to the suit were each responsible for 25 percent of the plaintiff’s damages, the court incorrectly ordered the defendant to pay 25 percent of the total damages; the statute required that the defendant pay 50 percent of the the plaintiff’s recoverable damages, that is, 50 percent of 75 percent of the total damages, or 37.5 percent of the total damages. DePriest v. Barber, 798 So. 2d 456, 2001 Miss. LEXIS 75 (Miss. 2001).

6. Miscellaneous.

Trial court erred in granting private contractors summary judgment on the basis that a widow’s wrongful death claim would require it to question military decisions because they failed to show that adjudication of a ballistic wall’s failure would implicate a political question; the contractors did not show that they would put forward a viable contributory negligence defense because the claim that the wall failed could stand without implicating a decision committed to the military’s discretion. Ghane v. Mid-South Inst. of Self Def. Shooting, Inc., 137 So.3d 212, 2014 Miss. LEXIS 32 (Miss.), cert. denied, — U.S. —, 135 S. Ct. 108, 190 L. Ed. 2d 41, 2014 U.S. LEXIS 5713 (U.S. 2014).

Chancellor erred by imposing joint and several liability on a city, lake owners, and a homeowners association for damages to a homewowner’s property caused by the failure of a culvert system, as she did not find that they had colluded to commit a tortious act. Borne v. Estate of T. L. Carraway, 118 So.3d 571, 2013 Miss. LEXIS 373 (Miss. 2013).

Where plaintiffs sued defendants for the wrongful removal of timber from a tract of land they alleged defendants held in trust for plaintiffs’ benefit, the chancellor erred by failing to consider the percentage of fault of the settling defendants or nonparties, as required by Miss. Code Ann. §85-5-7(5). Smiley v. Yllander, 105 So.3d 1171, 2012 Miss. App. LEXIS 807 (Miss. Ct. App. 2012).

Grant of summary judgment in favor of the other driver in the passenger’s negligence action for injuries that she received in a car accident was inappropriate because an oral surgeon’s testimony was admissible; he testified that his opinion was based on his knowledge, skill, experience, training, and education as an orthopedic surgeon and his testimony was sufficient to establish the element of proximate cause and was admissible for the jury to consider in the apportionment of damages. The other driver, as the driver of the second car to hit the vehicle in which the passenger was riding, was responsible only for the amount of the passenger’s damages that were based on his fault allocated by the jury in accord with Miss. Code Ann. §85-5-7. Lopez v. McClellan, 2010 Miss. App. LEXIS 214 (Miss. Ct. App. Apr. 27, 2010).

In a products liability action alleging three welding rod manufacturers’ failure to warn, the fact that the professional welder was exposed or overexposed to fumes from welding consumables manufactured by two nonparty manufacturer’s did not affect the legitimacy of the jury’s verdict against the three named manufacturers, as there was no factual or legal requirement that, in order to recover at trial, the harm caused to the professional welder by his exposure to welding fumes be caused only, or even mostly, by the three manufacturers’ products; although the three manufacturers argued to the jury that the presence of the nonparty manufacturers’ welding products in the workplace was relevant to causation, they never asked the court to instruct the jury to allocate fault to the nonparty manufacturers. The three manufacturers certainly knew how to ask for such an allocation, as they cited Miss. Code Ann. §85-5-7 and asked the court to allocate fault to the professional welder’s employer; but whatever their reasons for not seeking allocation of fault against the nonparty manufacturers, there was sufficient evidence at trial that the products manufactured by each of the three manufacturers were a proximate cause of harm to the professional welder, and the fact that the nonparty manufacturers might have proximately caused those same indivisible injuries was not a valid basis for the three manufacturers’ postverdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(b). Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, 2009 U.S. Dist. LEXIS 28806 (S.D. Miss. 2009), vacated, in part, 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

7-10. [Reserved for future use.]

II. Under former § 85-5-5.

11. In general.

Under Miss. Code Ann §85-5-7(3), a county was only liable for the portion of fault assigned to it with regard to the damages awarded to a passenger mother as the other portion of fault was assigned to a car driver. Callahan v. Ledbetter, 992 So. 2d 1220, 2008 Miss. App. LEXIS 547 (Miss. Ct. App. 2008).

In a case in which an insurer and a company sought contribution from a fire department for workers’ compensation benefits paid to a career fireman, the fire department’s Fed. R. Civ. P. 12 motion to dismiss was granted because the insurer and the company asserted a cause of action for contribution for workers’ compensation benefits which had long been recognized as not existing under Mississippi law absent a joint judgment among the parties. Travelers Prop. & Cas. Co. v. City of Greenwood Fire Dep't, 441 F. Supp. 2d 776, 2006 U.S. Dist. LEXIS 53914 (N.D. Miss. 2006).

This section was inapplicable to a wrongful death action in which defendant, as one of the alleged tortfeasors, was sued alone. Hood v. Dealers Transport Co., 472 F. Supp. 250, 1979 U.S. Dist. LEXIS 12939 (N.D. Miss. 1979).

In accordance with the policy established under this section, contribution between joint judgment debtors would be pro rata based upon the number of defendants rather than on the percentage of liability attributable to defendants. Celotex Corp. v. Campbell Roofing & Metal Works, Inc., 352 So. 2d 1316, 1977 Miss. LEXIS 1998 (Miss. 1977).

The first paragraph of this section [Code 1942, § 335.5] created a new Mississippi rule that joint tortfeasors are to share equally. Standard Oil Co. v. Illinois C. R. Co., 421 F.2d 201, 1969 U.S. App. LEXIS 9590 (5th Cir. Miss. 1969).

The effect of this statute is to create rights which did not exist before and destroyed a valid defense to an action for contribution which was available before the enactment of this statute. Klaas v. Continental Southern Lines, Inc., 225 Miss. 94, 82 So. 2d 705, 1955 Miss. LEXIS 563 (Miss. 1955).

In a wrongful death case, a trial court erred in awarding a new trial on the issue of damages because it should not have reallocated fault from an immune employer to an electric company. Entergy Miss., Inc. v. Hayes, 874 So. 2d 952, 2004 Miss. LEXIS 412 (Miss. 2004).

Where a car collision was caused when the driver of a commercial vehicle swerved to avoid hitting an unknown driver, the issue submitted to the jury was whether the commercial driver and his employer were negligent in the operation of the vehicle; because the jury rendered a verdict that defendants were not liable, the jury was not required to answer questions on the verdict form pertaining to the allocation of fault. White v. Stewman, 932 So. 2d 27, 2006 Miss. LEXIS 315 (Miss. 2006).

The second paragraph of this section [Code 1942, § 335.5] tells how to count the joint tortfeasor defendants who are to share in the contribution. Standard Oil Co. v. Illinois C. R. Co., 421 F.2d 201, 1969 U.S. App. LEXIS 9590 (5th Cir. Miss. 1969).

The proviso in the second paragraph of this section [Code 1942, § 335.5] places a ceiling on the liability of a principal or employer so that he (or his insurer) is not exposed to the risk of contributing twice, once for his agent’s wrong and once for his own responsibility imposed by respondeat superior. Standard Oil Co. v. Illinois C. R. Co., 421 F.2d 201, 1969 U.S. App. LEXIS 9590 (5th Cir. Miss. 1969).

In a situation where the proviso set forth in the second paragraph of this section [Code 1942, § 335.5] is inapplicable, the first paragraph of the section requires that the defendants against whom judgment is rendered shall share equally the obligation imposed by the judgment. Standard Oil Co. v. Illinois C. R. Co., 421 F.2d 201, 1969 U.S. App. LEXIS 9590 (5th Cir. Miss. 1969).

Where an agent was not the subject of a judgment entered against his principal, the principal runs no risk of paying twice, and the proviso in the second paragraph of this section [Code 1942, § 335.5] is inapplicable. Standard Oil Co. v. Illinois C. R. Co., 421 F.2d 201, 1969 U.S. App. LEXIS 9590 (5th Cir. Miss. 1969).

There is nothing in the statute to indicate that the legislature intended to make the new law apply to judgments rendered before its effective date. Klaas v. Continental Southern Lines, Inc., 225 Miss. 94, 82 So. 2d 705, 1955 Miss. LEXIS 563 (Miss. 1955).

The use of the word “is” in a clause providing that “any action for damages where judgment is rendered against two or more defendants jointly and severally,” although it usually denotes present tense but by reason of the context the meaning of this word appears to have a future signification. Klaas v. Continental Southern Lines, Inc., 225 Miss. 94, 82 So. 2d 705, 1955 Miss. LEXIS 563 (Miss. 1955).

12. Right to indemnification.

One insurance company was entitled to contribution from another insurance company where both were liable for accruing interest and cost of litigation, and one would be unjustly enriched if other’s payment were to relieve it of liability; because either insurance company could have been forced to pay entire cost, they had “common liability” for purposes of contribution. Nichols v. Anderson, 837 F.2d 1372, 1988 U.S. App. LEXIS 2365 (5th Cir. Miss. 1988).

An electric utility company was guilty of active negligence in failing to elevate a power line after it became aware that as a result of the land beneath the line being filled in, the line was dangerously lower than the height required in safety regulations, and the utility was not entitled to noncontractual implied indemnity from an employer, also actively negligent, for damages which the employer suffered as a result of settling with the heirs of an employee who was electrocuted while operating equipment which came in contact with the line. Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So. 2d 549, 1970 Miss. LEXIS 1550 (Miss. 1970).

Although there is no right of contribution where the parties are joint tortfeasors or are in pari delicto, parties are not in pari delicto when one party does the act or creates a dangerous situation and the other party is liable because of passive negligence in failing to remedy the defect causing an injury, or because of a nondelegable statutory duty. Bush v. Laurel, 215 So. 2d 256, 1968 Miss. LEXIS 1348 (Miss. 1968).

A city, by law under a nondelegable duty to maintain its streets and sidewalks in a reasonably safe condition, cannot be considered in pari delicto with a contractor who, with the consent of the municipality, dug a ditch into which a pedestrian fell and was injured; and the city was entitled to indemnification from the contractor for all sums which it paid in settlement of the pedestrian’s claim, including court costs and attorneys’ fees. Bush v. Laurel, 215 So. 2d 256, 1968 Miss. LEXIS 1348 (Miss. 1968).

13. Miscellaneous.

Where two chemical companies failed to refute an expert’s affidavit that contamination had not come from a toilet company or result from a migration of contaminates over its property, summary judgment was properly granted in favor of the toilet company, and the opportunity for allocation of fault was not unfairly prejudiced. Kerr-McGee Corp. v. Maranatha Faith Ctr., Inc., 873 So. 2d 103, 2004 Miss. LEXIS 500 (Miss. 2004).

Defendant in action by city employee for injuries sustained in car accident while employee was on duty cannot maintain third-party action against city for contribution under Miss Code Anno §85-5-5, as employee may not recover in tort against his employer due to exclusivity provisions of §71-3-9. McClellan v. Poole, 692 F. Supp. 687, 1988 U.S. Dist. LEXIS 9011 (S.D. Miss. 1988).

In an action by an insurer that had previously unsuccessfully defended its insured in a wrongful death action arising out of an automobile accident, alleging that the gas explosion responsible for the underlying death was caused by a design defect in decedent’s car and seeking to recover a portion of the judgment entered against its insured from defendants, the manufacturer of decedent’s car and the dealership that sold it to him, defendants’ motion to dismiss would be sustained where contribution among joint tortfeasors was available only when judgment was rendered against them jointly and severally and where neither defendant had been a party to the original lawsuit. Hartford Acci. & Indem. Co. v. Mitchell Buick-Pontiac & Equipment Co., 479 F. Supp. 345, 1979 U.S. Dist. LEXIS 9268 (N.D. Miss. 1979).

The settlement by a railroad company with the estate of a petroleum tank truck driver killed in a crossing accident did not constitute a release on the part of the company of its rights against the driver’s estate, thereby releasing the company’s right of contribution under this section [Code 1942, § 335.5] against the driver’s principals. Standard Oil Co. v. Illinois C. R. Co., 421 F.2d 201, 1969 U.S. App. LEXIS 9590 (5th Cir. Miss. 1969).

Where plaintiffs brought an action against city and a landowner, among others, for injury sustained when a tree fell upon their automobile, and the landowner entered his appearance but filed no defensive pleadings, an order of the trial court sustaining demurrer to an amended petition had the effect of finally dismissing plaintiff’s entire suit upon the failure to plead further within the time allowed, and finally disposed of the case as to the landowner, and neither Code 1942, § 1156, nor Code 1942, § 335.5, precluded plaintiff’s appeal from the trial court’s action. Barron v. Natchez, 229 Miss. 276, 90 So. 2d 673, 1956 Miss. LEXIS 607 (Miss. 1956).

Chapter 7. Liens

Article 1. Crops, Advances, Lumber, Timber, Foals, Calves and Water Craft.

Liens on Crops, Advances, Lumber, Timber, Foals, Calves and Water Craft

§ 85-7-1. Employer and employees; lien on crops.

  1. Every employer shall have a lien on the share or interest of his employee in any crop made under such employment, for all advances of money, and for the fair market value of other things advanced by him, or anyone at his request, for supplies for himself, his family and business during the existence of such employment, which lien the employer may offset, recoup, or otherwise assert and maintain.
  2. Every employee, laborer, cropper, part owner, overseer or manager, or other person who may aid by his labor to make, gather, or prepare for sale or market any crop, shall have a lien on the interest of the person who contracts with him for such labor for his wages, share or interest in such crop, whatever may be the kind of wages or the nature of the interest, which lien such employee, laborer, cropper, part owner, overseer or manager, or other person may offset, recoup or otherwise assert and maintain.
  3. Except as provided in subsection (4) of this section, any lien arising under the provisions of this section shall be paramount to all liens and encumbrances or rights of any kind created by or against the person so contracting for such assistance when perfected in accordance with Uniform Commercial Code Article 9 – Secured Transactions (Section 75-9-101 et seq.), except the lien of the lessor of the land on which the crop is made, for rent and supplies furnished, as provided in the chapter on “Landlord and Tenant,” appearing as Chapter 7 of Title 89, Mississippi Code of 1972.
  4. Any lien arising under the provisions of subsection (2) of this section in favor of any person other than an employee, laborer, cropper, part owner, overseer or manager as to crops or the proceeds thereof shall be effective against a third party only for a period of twenty-one (21) days from and after the time the labor is completed, unless within such period of time the lien is perfected in accordance with Uniform Commercial Code Article 9 – Secured Transactions (Section 75-9-101 et seq.). Any such lien in favor of any person other than an employee, laborer, cropper, overseer or manager which has not been perfected within the twenty-one-day period as herein provided shall, upon subsequent perfection of such lien, have the priority as against a third party to which a perfected security interest may be entitled under Uniform Commercial Code Article 9 – Secured Transactions (Section 75-9-101 et seq.).

HISTORY: Codes, 1880, § 1360; 1892, § 2682; 1906, § 3042; Hemingway’s 1917, § 2400; 1930, § 2238; 1942, § 336; Laws, 1894, ch. 71; Laws, 1985, ch. 492; Laws, 2001, ch. 495, § 33, eff from and after Jan. 1, 2002.

Amendment Notes —

The 2001 amendment, effective January 1, 2002, inserted “when perfected in accordance with Uniform Commercial Code Article 9 – Secured Transactions (Section 75-9-101 et seq.)” following “assistance” in (3); and rewrote (4).

Cross References —

Requirement of paying employees twice a month, see §§71-1-35,71-1-53.

Warehouseman’s lien, see §§75-7-209,75-7-210.

Carrier’s lien, see §§75-7-307,75-7-308.

Investment security issuer’s lien, see §75-8-103.

Exclusion of certain liens from operation of Uniform Commercial Code governing secured transactions, see §75-9-104.

Place of filing to perfect security interest under Article 9 of Uniform Commercial Code, see §75-9-401.

Enforcement of lien of state under the Petroleum Products Inspection Law, see §75-55-37.

Lien of innkeepers on baggage, see §75-73-15.

Requirement that tenants’ goods not be removed until rent is paid, see §89-7-1.

Tenant’s remedy against landlord, see §89-7-115.

RESEARCH REFERENCES

ALR.

Bailee’s lien for work on goods as extending to other goods of the bailor in his possession. 25 A.L.R.2d 1037.

Sufficiency of notice, claim, or statement of mechanic’s lien with respect to description or location of real property. 52 A.L.R.2d 12.

Filing of mechanics’ lien or proceeding for its enforcement as affecting right to arbitration. 73 A.L.R.3d 1066.

Am. Jur.

7 Am. Jur. Legal Forms 2d, Crops § 80:81 (lessor’s lien on lessee’s interest in crops and pasturage).

JUDICIAL DECISIONS

1. Persons entitled to lien.

2. Property subject to lien.

3. Priority of liens.

4. Enforcement of lien.

5. Assignment of lien.

6. Waiver of lien.

1. Persons entitled to lien.

Ginner who gins and bales cotton for market has lien thereon for his charges. Quiver Gin Co. v. Looney, 144 Miss. 709, 111 So. 107, 1927 Miss. LEXIS 378 (Miss. 1927); Irwin v. Miller, 72 Miss. 174, 16 So. 678, 1894 Miss. LEXIS 108 (Miss. 1894); Duncan v. Jayne, 76 Miss. 133, 23 So. 392, 1898 Miss. LEXIS 55 (Miss. 1898).

Overseer has lien for wages under contract of employment where wrongfully discharged, less earnings elsewhere. Langford v. Leggett, 99 Miss. 266, 54 So. 856, 1911 Miss. LEXIS 203 (Miss. 1911).

It was held prior to the amendment in the law of 1894, incorporated above, that the overseer of the farm, in making a crop, had a lien for his wages. Weise v. Rutland, 71 Miss. 933, 15 So. 38, 1894 Miss. LEXIS 17 (Miss. 1894); Powell v. Smith, 74 Miss. 142, 20 So. 872, 1896 Miss. LEXIS 124 (Miss. 1896).

An employee on one plantation who merely for a few days supervises laborers sent therefrom to another plantation of his employer is not a laborer on the other plantation entitled to a lien on the crops grown thereon. Terry v. Groves, 71 Miss. 539, 14 So. 451, 1893 Miss. LEXIS 114 (Miss. 1893).

One employed as a wage hand and general laborer, and who aids in producing, gathering and ginning cotton grown on the plantation, has a lien on the cotton for his wages for all work done by him as a general laborer, including labor having no reference to the cotton. Lumbley v. Thomas, 65 Miss. 97, 5 So. 823, 1887 Miss. LEXIS 24 (Miss. 1887).

2. Property subject to lien.

Section 85-7-1 limits priority or paramount lien to crop for which labor was supplied; thus, while plaintiff may have been able to claim priority or paramount lien on cotton grower’s 1982 crop, the year in which services were performed, it has no priority lien by virtue of statute on cotton grower’s 1985 crop; furthermore, statute makes no provision for priority lien for supplier of materials such as fertilizer or chemicals and is limited in its application to suppliers of labor only. Flora Compress & Warehouse Co. v. Virden, 642 F. Supp. 466, 2 U.C.C. Rep. Serv. 2d (CBC) 709, 1986 U.S. Dist. LEXIS 25446 (S.D. Miss. 1986).

Where tenant was authorized to sell crop free from share croppers’ liens and to turn buyers’ checks over to landlord for collection, who was to turn back to tenant amounts due croppers to be turned over to them, such amounts were impressed with trust in hands of landlord, who knew funds constituted croppers’ shares, and could not be applied on tenant’s note notwithstanding tenant’s consent thereto. Jackson v. Jefferson, 171 Miss. 774, 158 So. 486, 1935 Miss. LEXIS 13 (Miss. 1935).

3. Priority of liens.

A ginner has a lien superior to all other liens for his services where the preparation of the cotton for market is not otherwise provided for by the landlord or other interested party. Duncan v. Jayne, 76 Miss. 133, 23 So. 392, 1898 Miss. LEXIS 55 (Miss. 1898).

A ginner to whom cotton is delivered by the owner, and who gins the same, has a lien for his charges paramount to all others except that of the landlord. Irwin v. Miller, 72 Miss. 174, 16 So. 678, 1894 Miss. LEXIS 108 (Miss. 1894).

4. Enforcement of lien.

Since 11 U.S.C.S. § 546(b)(1)(A) recognized the effectiveness of state statutes which permit certain creditors to perfect a lien within a specified period of time that then takes priority over the existing liens of other creditors, the automatic bankruptcy stay thus did not apply under 11 U.S.C.S. § 362(b)(3) even though a creditor perfected its statutory crop lien for cotton ginning services one day after bankruptcy petitions were filed. In re Crosthwait Cotton & Planting Co., 2003 Bankr. LEXIS 784 (Bankr. N.D. Miss. July 3, 2003).

The lien of an employee may be enforced against a purchaser of agricultural products, whether he buys with or without notice, and the burden is not on the plaintiff to show that he did not consent to the sale. Powell v. Smith, 74 Miss. 142, 20 So. 872, 1896 Miss. LEXIS 124 (Miss. 1896).

5. Assignment of lien.

The lien of a laborer is assignable. Kerr v. Moore, 54 Miss. 286, 1876 Miss. LEXIS 32 (Miss. 1876).

6. Waiver of lien.

Where tenant was authorized to sell crop free from share croppers’ liens and to turn buyers’ checks over to landlord for collection, who was to turn back to tenants amounts due croppers to be turned over to them, croppers’ liens, though waived as to buyers of crops, were not waived as to proceeds in hands of tenant or landlord. Jackson v. Jefferson, 171 Miss. 774, 158 So. 486, 1935 Miss. LEXIS 13 (Miss. 1935).

Lien of assistant manager of plantation may be waived by course of dealing showing consent to disposition of crop. Williams v. Delta Grocery & Cotton Co., 159 Miss. 575, 132 So. 732, 1931 Miss. LEXIS 84 (Miss. 1931).

Course of dealing between assistant manager of plantation and owner for several years held to constitute waiver of former’s lien on crop. Williams v. Delta Grocery & Cotton Co., 159 Miss. 575, 132 So. 732, 1931 Miss. LEXIS 84 (Miss. 1931).

Ginner’s lien may be waived by course of dealings between parties. Quiver Gin Co. v. Looney, 144 Miss. 709, 111 So. 107, 1927 Miss. LEXIS 378 (Miss. 1927).

Ginner turning over gin receipts received on delivery of cotton to compress waived his lien thereon. Quiver Gin Co. v. Looney, 144 Miss. 709, 111 So. 107, 1927 Miss. LEXIS 378 (Miss. 1927).

Where the manager of a plantation ships cotton to be sold in the market of a neighboring town, he waives his lien under this section [Code 1942, § 336], and cannot maintain a suit against a factor who had received the cotton of the consignee and sold it, applying the proceeds to the credit of the plantation or its owner. McCormick v. Blum, 75 Miss. 81, 21 So. 707, 1897 Miss. LEXIS 91 (Miss. 1897).

§ 85-7-3. Sawmill employees and timber men; lien on lumber and timber.

Every employee or laborer of an employer engaged in the operation of a sawmill or planing mill or in cutting and shipping or rafting timber shall have a lien on all such lumber and timber for his wages due by such employer in preference to all other debts of the said employer; but such lien shall take effect as to purchases or incumbrances for a valuable consideration without notice thereof only from the time of commencing judicial proceedings to enforce the lien, and unless such proceedings have been begun the said lien shall expire six (6) months after the claim is due.

HISTORY: Codes, Hemingway’s 1917, §§ 2415, 2416, 2417; 1930, § 2240; 1942, § 338; Laws, 1908, ch. 131; Laws, 1922, ch. 282.

Cross References —

Warehouseman’s lien, see §§75-7-209,75-7-210.

Carrier’s lien, see §§75-7-307,75-7-308.

Investment security issuer’s lien, see §75-8-103.

Exclusion of certain liens from operation of Uniform Commercial Code governing secured transactions, see §75-9-104.

Salvage of abandoned logs, see §§89-17-1 et seq.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. Legal Forms 2d, Liens 165:19 et seq. (notices).

JUDICIAL DECISIONS

1. In general.

2. Persons entitled to lien.

3. Property subject to lien.

4. Priority of liens.

5. Enforcement of lien.

1. In general.

“Employee” includes a larger class than “laborer.” Hinton & Walker v. Pearson, 142 Miss. 50, 107 So. 275, 1926 Miss. LEXIS 64 (Miss. 1926), overruled, McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315, 1933 Miss. LEXIS 294 (Miss. 1933).

2. Persons entitled to lien.

Person employed by operator of sawmill to haul logs owned by another for sawing under contract was not entitled to lien for services. Held v. Surber, 158 Miss. 799, 131 So. 420, 1930 Miss. LEXIS 120 (Miss. 1930).

One merely furnishing teams for hauling logs is not an “employee or laborer” entitled to lien. Weeks v. Seale, 143 Miss. 222, 108 So. 505, 1926 Miss. LEXIS 259 (Miss. 1926).

Persons hauling lumber to railroad were “employees” entitled to lien. Hinton & Walker v. Pearson, 142 Miss. 50, 107 So. 275, 1926 Miss. LEXIS 64 (Miss. 1926), overruled, McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315, 1933 Miss. LEXIS 294 (Miss. 1933).

3. Property subject to lien.

Lien on timber for labor or services exists only on timber of laborers’ employer, thereby excluding lien on that not owned by employer. Held v. Surber, 158 Miss. 799, 131 So. 420, 1930 Miss. LEXIS 120 (Miss. 1930).

Evidence as to ownership of lumber on which lien was claimed was sufficient to go to jury. Broadus v. Calhoun, 139 Miss. 28, 103 So. 808, 1925 Miss. LEXIS 125 (Miss. 1925).

4. Priority of liens.

Lien on lumber of operator of sawmill of employees for wages is superior to that of one who sold the logs and let the mill to operator. O'Quinn v. Grace, 143 Miss. 655, 109 So. 672, 1926 Miss. LEXIS 304 (Miss. 1926).

5. Enforcement of lien.

Employees of sawmill have concurrent lien on employer’s lumber enforceable in chancery by all in one suit. Cooley v. Tullos, 115 Miss. 268, 76 So. 263, 1917 Miss. LEXIS 207 (Miss. 1917).

§ 85-7-5. Owner of stallion, jackass, or bull; lien on foal or calf.

The owner of a stallion, jackass or bull shall have a lien on each foal begotten by his stallion or jackass, and on each calf begotten by his bull, for the price agreed to be paid therefor, and such lien shall be prior to all other incumbrances on such foal or calf and shall bind the same even in the hands of subsequent purchasers and encumbrancers for a valuable consideration without notice; but the said lien shall expire twelve months after the birth of said foal or calf unless within that time judicial proceedings have been begun to enforce the lien. If the owner shall have falsely represented the breeding, registration, or pedigree of his stallion, jackass or bull, by advertisement or otherwise, he shall not have a lien on the foal begotten by such stallion or jackass, or on the calf of such bull, as against any person who acted under the belief that such representation was true; and, in such case, the owner of the animal shall not have any claim for the service of the stallion, jackass, or bull.

HISTORY: Codes, 1880, § 1394; 1892, §§ 2716, 2717, 2718; 1906, §§ 3076, 3077, 3078; Hemingway’s 1917, §§ 2439, 2440, 2441; 1930, § 2241; 1942, § 339; Laws, 1888, p. 90; Laws, 1934, ch. 312; Laws, 1936, ch. 295.

Cross References —

Exclusion of certain liens from operation of Uniform Commercial Code governing secured transactions, see §75-9-104.

RESEARCH REFERENCES

ALR.

Contracts for breeding horses. 34 A.L.R.5th 651.

§ 85-7-7. Water craft; work, materials, supplies, etc.

There shall be a lien on all ships, steamboats and other water craft for work done or materials supplied by any person in this state for or concerning the building, repairing, fitting, furnishing, supplying or victualing such ships, steamboats or other water craft, and for the wages of the persons employed on board such vessel, boat, or craft, for work done or services rendered, in preference to all other debts due and owing from the owners thereof. The said lien shall expire six (6) months after the claim is due, unless judicial proceedings have been commenced to assert it.

HISTORY: Codes, 1880, § 1395; 1892, § 2725; 1906, § 3085; Hemingway’s 1917, §§ 2445, 2447; 1930, § 2242; 1942, § 340.

Cross References —

Warehouseman’s lien, see §§75-7-209,75-7-210.

Carrier’s lien, see §§75-7-307,75-7-308.

Exclusion of certain liens from operation of Uniform Commercial Code governing secured transactions, see §75-9-104.

Effect of writ of execution for the sale of steamboat or watercraft, see §85-7-53.

Salvage of abandoned boats, see §§89-17-1 et seq.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 340] does not abrogate common-law right of lien for services in repair of boat in possession of repairer. Kornosky v. Hoyle, 97 Miss. 562, 52 So. 481, 1910 Miss. LEXIS 239 (Miss. 1910).

Debts for materials, supplies and labor created in the performance of a contract to repair a ship are not liens on the vessel, under this section [Code 1942, § 340], when they were created by an independent contractor who was in no sense an agent of the ship owner. Valverde v. Spottswood, 77 Miss. 912, 28 So. 720, 1990 Miss. LEXIS 901 (Miss. 1900).

§ 85-7-9. Water craft; municipal dockage, wharfage, or anchorage charges.

  1. There shall be a lien on all skiffs, yachts, and other water craft in favor of any municipality operating a small craft or yacht harbor or basin for dockage, wharfage or anchorage charges for space or anchorage contracted for by the water craft or its owner or agent where the charge for such space or anchorage is made for a period of time without regard to the actual time such skiff, yacht or other water craft is actually docked or anchored to the dock, wharf, or at the mooring place in the basin. Such lien shall be paramount to all other debts due and owing by such water craft, or the owner thereof, or other lien thereon, except as provided by Section 85-7-7.
  2. The lien, by this section provided, shall be enforced as provided by Sections 85-7-31 through 85-7-53, inclusive.

HISTORY: Codes, 1942, § 340-01; Laws, 1946, ch. 290, §§ 1, 2.

Cross References —

Municipal piers and bathhouses, see §21-37-13.

Municipal harbors and wharves, see §21-37-15.

Warehouseman’s lien, see §§75-7-209,75-7-210.

Carrier’s lien, see §§75-7-307,75-7-308.

Exclusion of certain liens from operation of Uniform Commercial Code governing secured transactions, see §75-9-104.

Municipal dockage, wharfage, or anchorage charges, see §85-7-9.

RESEARCH REFERENCES

Am. Jur.

79 Am. Jur. 2d, Wharves § 34.

Suits to Enforce Liens on Crops, Advances, Lumber, Timber, Foals, Calves and Water Craft

§ 85-7-31. Commencement of suit.

A person having any lien in Sections 85-7-1 through 85-7-9 may enforce the same by making affidavit before any officer authorized to administer oaths of any county where the subject-matter of the lien may be, describing therein the property sought to be subjected, setting forth his claim, share or interest therein, and asserting his lien thereon, with an itemized account of his demand, and giving the names of the persons interested therein, and of those, if any, who have a like or other claim or interest in such property; whereupon the clerk or justice shall issue a writ directed to the proper officer and returnable to the proper court, commanding the officer to seize the property, or so much thereof as may be necessary to satisfy the plaintiff’s demand and costs, and to summon the persons named in the affidavit as interested therein, to appear in the court designated, at the time fixed, to answer the complaint.

HISTORY: Codes, 1880, §§ 1363, 1364; 1892, § 2684; 1906, § 3044; Hemingway’s 1917, § 2402; 1930, § 2243; 1942, § 341.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Attachment of perishable commodities, see §§11-1-43 et seq.

Replevin, attachment, and lien proceedings before justices of the peace, see §11-9-135.

Arbitration of controversies arising out of construction contracts and related agreements, and failure of arbitration to effect liens, see §11-15-101.

Writ to seize property and subsequent proceedings thereto, see §11-21-77.

Enforcement of lien which is upon an animal, see §69-13-21.

Selling of hotel guest’s baggage, see §75-73-17.

How and when lien is enforced, see §85-7-141.

Seizure of ward’s property which is about to be removed by guardian, see §93-13-65.

RESEARCH REFERENCES

ALR.

Architect’s services as within mechanics’ lien statute. 31 A.L.R.5th 664.

Am. Jur.

51 Am. Jur. 2d, Liens §§ 83 et seq.

53 Am. Jur. 2d, Mechanics’ Liens §§ 333 et seq.

CJS.

53 C.J.S., Liens §§ 46, 50 et seq.

JUDICIAL DECISIONS

1. Persons entitled to enforce lien.

2. Affidavit, sufficiency of.

3. —Amendment of.

4. —Itemized account.

5. Evidence.

1. Persons entitled to enforce lien.

In a case in which the owner of two multimillion-dollar yachts under construction challenged a lien the unpaid paint supplier established and enforced on the yachts under the Water Craft Seizure Act, summary judgment was properly granted in favor of the owner because privity did not exist between the owner and the paint supplier; the specification of the brand of paint and the painter supplier in the contract between the owner and the independent contractor did not establish privity between the owner and the paint supplier; and the amendment to the master service agreement did not operate retroactively to create privity between the owner and the paint supplier sufficient to create a lien in the paint supplier’s favor. Trinity Yachts, LLC v. Mike & Jerry's Paint & Supply (In re Lien), 152 So.3d 286, 2014 Miss. LEXIS 602 (Miss. 2014).

A Mississippi court could not adjudicate or judicially establish a mechanic’s lien against a tractor not situated within the boundaries of the state; under state law, a proceeding to establish a mechanic’s lien is a proceeding in rem against the property and not a proceeding in personam, even though the owner must be named as a party to the suit. Crawler Parts, Inc. v. Laclede Land & Livestock Co., 374 So. 2d 798, 1979 Miss. LEXIS 2364 (Miss. 1979).

Where purchaser of a car under a retained title contract incurred a bill for repairs which was necessary for preservation and the operation of the automobile and to prevent its deterioration, the mechanic was entitled to enforce a mechanic’s lien which was superior to the rights of the seller who repossessed the car upon a default on the contract. Commercial Sec. Co. v. Kriner, 53 So. 2d 92 (Miss. 1951).

One who makes oral sale and delivery of a motor on credit, without retaining title to, or lien upon, motor to secure purchase price, has a statutory lien under Code 1942, § 337 upon motor as security for debt which vests him with right to have property seized by officer and for personal judgment for his demand and for sale of property through processes of court to satisfy his demand. Runnels v. Fairchild, 204 Miss. 287, 37 So. 2d 312, 1948 Miss. LEXIS 363 (Miss. 1948).

The assignee of a laborer’s lien may enforce it in the same manner and to the same extent as the laborer. Kerr v. Moore, 54 Miss. 286, 1876 Miss. LEXIS 32 (Miss. 1876).

2. Affidavit, sufficiency of.

Proceeding for seizure of property on which seller had purchase-money lien was not invalid because affidavit for seizure was made before officer in another state, since statute, providing that person having purchase-money lien “can enforce same” by making affidavit before proper officer of county where subject-matter of lien may be, is not mandatory. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337, 1936 Miss. LEXIS 277 (Miss. 1936).

Proceeding for enforcement of purchase-money lien was not invalid because seller did not show notary public, before whom affidavit of seizure which was made in Ohio was taken, had authority to take and certify affidavits, since court would take judicial notice of Ohio law authorizing notary public to administer and certify oaths. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337, 1936 Miss. LEXIS 277 (Miss. 1936).

In proceeding to enforce seller’s purchase-money lien brought in justice court and appealed to circuit court, permitting seller to file, in circuit court, affidavit for writ of seizure was proper although, because of amount involved, circuit court would not have had original jurisdiction. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337, 1936 Miss. LEXIS 277 (Miss. 1936).

The justice before whom the affidavit was made, and who failed to affix his signature, may affix his name thereto in open court after motion to dismiss the case for want of an affidavit. Hartsell v. Myers, 57 Miss. 135, 1879 Miss. LEXIS 31 (Miss. 1879).

3. —Amendment of.

County court’s allowance of an amendment to correct the description of certain tires and tubes and making the description applicable to both the declaration and the affidavit, was proper exercise of its discretion in light of the fact that the defendants were not prejudiced. Hannan Motor Co. v. Darr, 212 Miss. 870, 56 So. 2d 64, 1952 Miss. LEXIS 320 (Miss. 1952).

The affidavit may be amended by adding the names of others interested with the affiant. May v. Williams, 61 Miss. 125, 1883 Miss. LEXIS 84 (Miss. 1883).

4. —Itemized account.

Where the defendant contested the claim of mechanic’s lien on a truck and also objected that the account was not properly itemized, but filed no pleadings questioning the account and the defendant did not follow the statute as to the methods of contesting claims, and the answer of the defendant in effect admitted the correctness of the amount, the defendant waived any objection. Hannan Motor Co. v. Darr, 212 Miss. 870, 56 So. 2d 64, 1952 Miss. LEXIS 320 (Miss. 1952).

An itemized account is unnecessary where the affidavit filed by a laborer to enforce his lien for wages contains as full information as could be given by the filing of an independent paper, and his claim rests upon a contract for a definite sum per month and does not consist of items. Baldwin v. Morgan, 73 Miss. 276, 18 So. 919, 1895 Miss. LEXIS 108 (Miss. 1895).

5. Evidence.

In proceeding to enforce purchase-money lien for unpaid balance due on an accounting machine for use of business establishment, evidence that salesman misrepresented machine and that purchasers received offer to buy machine from third party, who, upon being told by seller that it would not recognize proposed purchase, refused to complete the transaction, held inadmissible to contradict terms of contract providing that it could not be changed by oral agreement and that machine could not be sold without consent of seller. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337, 1936 Miss. LEXIS 277 (Miss. 1936).

§ 85-7-33. Non-resident or unknown parties.

If any party in interest be a non-resident of the state, or his whereabouts be unknown, he may be made a party to the suit and be proceeded against as in case of suits by attachment against such persons.

HISTORY: Codes, 1880, § 1370; 1892, § 2690; 1906, § 3050; Hemingway’s 1917, § 2408; 1930, § 2244; 1942, § 342.

Cross References —

Remedy of attachment, see §§11-33-1 et seq.

RESEARCH REFERENCES

ALR.

Residence of partnership for purposes of statutes authorizing attachment or garnishment on ground of nonresidence. 9 A.L.R.2d 471.

Am. Jur.

51 Am. Jur. 2d, Liens § 86.

§ 85-7-35. Precedents.

Affidavits and writs in the form of the following precedents shall be sufficient in cases of employer and employee, and in other cases the form shall vary so as to conform to the facts.

HISTORY: Codes, 1880, § 1373; 1892, § 2693; 1906, § 3053; Hemingway’s 1917, § 2411; 1930, § 2245; 1942, § 343.

§ 85-7-37. Affidavit.

“State of Mississippi, County “Before me, , a justice of the peace of the said county, makes oath that he was employed by during the year A. D. , as a laborer, and as such, and under his employment, assisted to make a crop of cotton and corn, which yielded bales of cotton and bushels of corn, which are now in the possession of , and the same is at , in said county; and that affiant is, by his contract and services, entitled to one-half of said cotton and corn, the same being of the value of dollars, which the said withholds from him [or whatever may be the claim]. Affiant claims a lien on all of said cotton and corn for the recovery of his share or interest therein, and that and claim a like lien thereon. Affiant prays process according to law. “ ” “Sworn to and subscribed before me, the day of , A. D. “, J. P.”

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HISTORY: Codes, 1880, § 1374; 1892, § 2694; 1906, § 3054; Hemingway’s 1917, § 2412; 1930, § 2246; 1942, § 344.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 85-7-39. Writ; form.

“The State of Mississippi. “To any lawful officer of county: “We command you forthwith to take into your possession and dispose of, according to law, bales of cotton and bushels of corn, now in the possession of , believed to be at , in your county, as it is said, or so much thereof as will be sufficient to satisfy the claim of , who asserts an interest therein to the extent of one-half thereof, which he avers is of the value of dollars [or who claims a lien thereon for dollars, alleged to be due him for his wages as a laborer in producing said articles, or whatever the claim may be, as set forth in the affidavit], for his labor in producing said articles, and summon the said [and any others shown by the affidavit to have an adverse claim to said articles] to appear before the undersigned, a justice of the peace of said county, at , on , the day of A. D. , at o’clock, .M., to answer said claim, and have this writ there then. “Witness my hand, the day of , A. D. . “, J. P.”

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HISTORY: Codes, 1880, § 1375; 1892, § 2695; 1906, § 3055; Hemingway’s 1917, § 2413; 1930, § 2247; 1942, § 345.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 85-7-41. Writ; where returnable.

The writ shall be returnable before the justice of the peace who issued it or some other justice of the peace, if the principal of the sum claimed does not exceed Two Hundred Dollars ($200.00), and, if it does, it shall be returnable to the circuit court; and in such case the affidavit shall be filed, by the officer who issued the writ, in the office of the clerk of the circuit court, on or before the return day of the writ.

HISTORY: Codes, 1880, § 1365; 1892, § 2685; 1906, § 3045; Hemingway’s 1917, § 2403; 1930, § 2248; 1942, § 346.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

RESEARCH REFERENCES

ALR.

Abandonment of construction or of contract as affecting time for filing mechanics’ liens or time for giving notice to owner. 52 A.L.R.3d 797.

JUDICIAL DECISIONS

1. In general.

The jurisdiction of the court is determinable by the amount demanded and not by the value of the property seized. May v. Williams, 61 Miss. 125, 1883 Miss. LEXIS 84 (Miss. 1883).

§ 85-7-43. Writ; when returnable.

The writ, when returnable before a justice of the peace, may be made returnable at any time which will give the parties in interest five (5) days’ notice before trial; and when returnable to the circuit court, it may be executed at any time before the first day of the term, and the cause shall be triable at such term.

HISTORY: Codes, 1880, § 1366; 1892, § 2686; 1906, § 3046; Hemingway’s 1917, § 2404; 1930, § 2249; 1942, § 347.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 85-7-45. Writ; return to wrong court not to affect the case.

If the writ be made returnable to the wrong court, the case shall not be dismissed nor affected thereby, but shall be transferred to the proper court, and the cause shall be there proceeded with as if the writ had been made returnable there; and any bond given shall not be affected by such mistake, but it may be proceeded on in the proper court.

HISTORY: Codes, 1880, § 1367; 1892, § 2687; 1906, § 3047; Hemingway’s 1917, § 2405; 1930, § 2250; 1942, § 348.

§ 85-7-47. Replevy of property seized.

The defendant, or any person interested, may give bond, with sufficient sureties, and replevy the property seized, as provided in the action of replevin; and the rights of the parties respectively to give such bond and receive the property from the officer, and the condition of the bond, the necessary changes being made, and the duty of the officer to take it and his liability thereon, and the disposition he shall make of the property if bond be not given, and the proceeding on such bond, shall be as provided for in the like case in the action of replevin; and any bond given shall inure to the person in whose favor judgment may be given in the case, as if it were payable to him.

HISTORY: Codes, 1880, § 1368; 1892, § 2688; 1906, § 3048; Hemingway’s 1917, § 2406; 1930, § 2251; 1942, § 349.

JUDICIAL DECISIONS

1. In general.

Where, upon a corporation’s default in the payment of notes executed for the part payment of certain personal property, obligors executed a bond binding themselves to pay a stated sum unless the described property was before the court at a certain time to satisfy a judgment in a replevin action by the seller against the corporate purchaser, and the property had been surrendered to the sheriff, who had sold it and applied the proceeds to the personal judgment of the seller against the corporate purchaser, personal judgment should not have been entered against the obligors. Cannady v. Morris, 232 Miss. 278, 98 So. 2d 768, 1957 Miss. LEXIS 472 (Miss. 1957).

Liability of sureties on replevin bond executed in laborer’s lien proceedings is for return of property or its value ascertained by jury. Coleman v. Bowman, 135 Miss. 137, 99 So. 465, 1924 Miss. LEXIS 5 (Miss. 1924).

§ 85-7-49. Issue and judgment.

Any person interested may contest the demand of the plaintiff on the return day of the writ, if returned, or on any day before the rendition of final judgment in the case, by filing a statement in writing, under oath, of his defense or claim, itemizing his account, if any he has; and the case shall be then at issue between the parties, and shall be tried as other cases in the court. And the judgment of the court shall be framed so as to adjust the rights of the several parties as to the subject-matter of the suit; and judgment may be given against the party liable thereto for any amount, and for the sale of any goods in the hands of the officer, and for any balance not obtained from the sale of the goods, to be made by execution as in other cases, and the costs may be adjudged as the court may consider just; and as many judgments shall be rendered as may be necessary to adjust the rights of the several parties.

HISTORY: Codes, 1880, § 1369; 1892, § 2689; 1906, § 3049; Hemingway’s 1917, § 2407; 1930, § 2252; 1942, § 350.

Cross References —

Trial of right of property, see §§11-23-7 et seq.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Liens § 93.

53 Am. Jur. 2d, Mechanics’ Liens §§ 409 et seq.

17 Am. Jur. Pl & Pr Forms (Rev) Mechanics’ Liens, Forms 171 et seq. (judgments or decrees).

JUDICIAL DECISIONS

1. Pleadings.

2. Judgment.

3. Costs.

1. Pleadings.

Where the defendant contested the claim of mechanic’s lien on a truck and also objected that the account was not properly itemized, but filed no pleadings questioning the account and the defendant did not follow the statute as to the methods of contesting claims, and the answer of the defendant in effect admitted the correctness of the amount, the defendant waived any objection. Hannan Motor Co. v. Darr, 212 Miss. 870, 56 So. 2d 64, 1952 Miss. LEXIS 320 (Miss. 1952).

Where defendant’s answer alleged agreement of plaintiffs to settlement it was unnecessary for him to file an itemized statement of payments made. Easterling v. Shaifer, 38 So. 230 (Miss. 1905).

Where defendant pleaded payment he was entitled to introduce itemized account of payments made without filing it. Easterling v. Shaifer, 38 So. 230 (Miss. 1905).

2. Judgment.

Where purchaser of a car under a retained title contract incurred a bill for repairs which was necessary for preservation and the operation of the automobile and to prevent its deterioration, the mechanic was entitled to enforce a mechanic’s lien which was superior to the rights of the seller who repossessed the car upon a default on the contract. Commercial Sec. Co. v. Kriner, 53 So. 2d 92 (Miss. 1951).

Variance as to date of contract did not justify peremptory instruction. Hill v. Judd, 96 So. 849 (Miss. 1923).

In enforcement of laborer’s lien against seed, giving judgment against replevin bond without proof of value of seed is error. McCoy v. Tolar, 128 Miss. 202, 90 So. 628, 1921 Miss. LEXIS 305 (Miss. 1921).

Peremptory instruction for plaintiff was erroneous where defendant pleaded payment by sworn written statement as defense to suit to fix mechanic’s lien. Easterling v. Shaifer, 38 So. 230 (Miss. 1905).

The proceeding to enforce the lien is both in rem and in personam, general judgment being rendered against the person liable and the property seized condemned to be sold for its satisfaction. May v. Williams, 61 Miss. 125, 1883 Miss. LEXIS 84 (Miss. 1883).

3. Costs.

Costs should be awarded against the person who, in view of all the circumstances, ought equitably to bear it. May v. Williams, 61 Miss. 125, 1883 Miss. LEXIS 84 (Miss. 1883).

§ 85-7-51. Death of party not to abate suit.

If any party to the suit die, it shall not abate, but may be proceeded with as in other personal actions in such case; and if any party thereto die after judgment, the same may be executed and enforced as judgments in other personal actions in such case.

HISTORY: Codes, 1880, § 1370; 1892, § 2691; 1906, § 3051; Hemingway’s 1917, § 2409; 1930, § 2253; 1942, § 351.

§ 85-7-53. Sale of steamboat or water craft and its effect.

If the special writ of execution be for the sale of a steamboat or other water craft, the officer shall levy on, advertise and sell the same as personal property too cumbersome to be moved is levied on and sold for debt; and the purchaser shall acquire the same free from all prior encumbrances saving the rights of those having concurrent liens under this chapter.

HISTORY: Codes, 1892, § 2711; 1906, § 3071; Hemingway’s 1917, § 2431; 1930, § 2254; 1942, § 352.

Cross References —

Lien on watercraft, see §85-7-7.

Salvage of abandoned boats, see §§89-17-1 et seq.

Article 3. Sale of Timepiece, Jewelry, etc. For Repair Charges.

§ 85-7-71. Definition.

As used in Sections 85-7-71 through 85-7-81, the term “person” shall mean a natural person, partnership, corporation, or other legal entity.

HISTORY: Codes, 1942, § 352.5; Laws, 1964, ch. 377, eff from and after passage (approved April 23, 1964).

§ 85-7-73. Sale of watches, jewelry, etc., left over 90 days for repairs, etc. permitted.

Any watch, clock, timepiece, ring, jewelry, or other item, which has been repaired, altered, cleaned, sized, rebuilt, adjusted, or regulated, remaining in the possession of a person for a period of ninety (90) days or more, may be sold to pay reasonable or agreed charges, together with any costs or expenses provided for in Sections 85-7-71 through 85-7-81. Provided, however, that the person to whom such charges are payable and owing shall first notify the owner or owners of the proposed sale of the articles belonging to them and the amount of the charges due thereon.

HISTORY: Codes, 1942, § 352.5; Laws, 1964, ch. 377, eff from and after passage (approved April 23, 1964).

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. Legal Forms 2d, Liens § 165:24 (notice of lien and of sale-jeweler’s lien for repairs).

§ 85-7-75. Notice to owners.

The mailing by registered or certified United States mail of a letter, with a return address marked thereon, addressed to the owner or owners at their address given at the time of delivery of such articles to the person, shall constitute notice under the provisions of Sections 85-7-71 through 85-7-81. Said notice shall be mailed at least thirty (30) days before the articles belonging to such owner or owners may be sold for charges due thereon. The cost of mailing said letter shall be added to the charges.

HISTORY: Codes, 1942, § 352.5; Laws, 1964, ch. 377, eff from and after passage (approved April 23, 1964).

§ 85-7-77. Sale; disposition of proceeds.

If the chattel or chattels are not redeemed within thirty (30) days after the mailing of such letter, the person may sell such articles on the day and at the time and place specified in such letter. Such sales may be made either at public auction or by private sale. The proceeds of the sale in excess of the charges and necessary expenses of the procedure required by Sections 85-7-71 through 85-7-81 shall be held by the person for a period of six (6) months and if not reclaimed by the owner thereof within that time shall escheat to the county and be paid over to the chancery clerk to be placed into the general fund of the county in which the sale was held.

HISTORY: Codes, 1942, § 352.5; Laws, 1964, ch. 377, eff from and after passage (approved April 23, 1964).

§ 85-7-79. Notices required to be posted.

All persons taking advantage of Sections 85-7-71 through 85-7-81 must keep posted at all times in a prominent place in their receiving office or offices two (2) notices which read as follows: “All watches, clocks, timepieces, rings, jewelry, or other items, which have been repaired, altered, cleaned, sized, rebuilt, adjusted, or regulated, and not called for in ninety (90) days, will be sold to pay charges.”

HISTORY: Codes, 1942, § 352.5; Laws, 1964, ch. 377, eff from and after passage (approved April 23, 1964).

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. Legal Forms 2d, Liens § 165:24 (notice of lien and of sale-jeweler’s lien for repairs).

§ 85-7-81. Purpose and intent of Sections 85-7-71 through 85-7-81.

The purpose and intent of Sections 85-7-71 through 85-7-81 is to provide an inexpensive means of enforcing liens for small amounts, and to that end the provisions of said sections shall be construed to create a lien in addition to, and shall not exclude, any liens which may exist by virtue of either the common law or any other statute of the State of Mississippi.

HISTORY: Codes, 1942, § 352.5; Laws, 1964, ch. 377, eff from and after passage (approved April 23, 1964).

Article 5. Mechanics and Stablekeepers.

§ 85-7-101. Articles constructed, manufactured or repaired; lien for labor and materials.

Except as otherwise provided in Section 85-7-107, all carriages, buggies, wagons, plows, or any article constructed, manufactured or repaired for any person, and at his instance, shall be liable for the price of the labor and material employed in constructing, manufacturing or repairing the same; and the mechanic to whom the price of said labor and material may be due shall have the right to retain possession of such things so constructed, manufactured or repaired until the price be paid; and if the same shall not be paid within thirty (30) days, he may commence his suit in any court of competent jurisdiction and upon proof of the value of the labor and materials employed in such repairs, manufacture or construction, he shall be entitled to judgment against the party for whom such labor was done or materials furnished, with costs, as in other cases, and to a special order for the sale of the property retained in his possession for the payment thereof, with costs, and to an execution, as in other cases, for the residue of what remains unpaid after sale of the property.

HISTORY: Codes, 1880, § 1383; 1892, § 2715; 1906, § 3075; Hemingway’s 1917, § 2435; 1930, § 2255; 1942, § 353; Laws, 1988, ch. 542, § 2, eff from and after July 1, 1988.

Cross References —

Arbitration of controversies arising out of construction contracts and related agreements, and failure of arbitration to effect liens, see §11-15-101.

RESEARCH REFERENCES

ALR.

Priority as between lien for repairs and the like, and right of seller under conditional sales contract. 36 A.L.R.2d 198.

Priority as between artisans’ lien and chattel mortgage. 36 A.L.R.2d 229.

Municipal property as subject to mechanic’s lien. 51 A.L.R.3d 657.

Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanics’ lien, or as extending time for filing such a lien. 51 A.L.R.3d 1087.

Assertion of statutory mechanic’s or materialman’s lien against oil and gas produced or against proceeds attributable to oil and gas sold. 59 A.L.R.3d 278.

Garagemen’s lien: modern view as to validity of statute permitting sale of vehicle without hearing. 64 A.L.R.3d 814.

Enforceability of single mechanic’s lien upon several parcels against less than the entire property liened. 68 A.L.R.3d 1300.

Demand for or submission to arbitration as affecting enforcement of mechanics’ lien. 73 A.L.R.3d 1042.

Filing of mechanics’ lien or proceeding for its enforcement as affecting right to arbitration. 73 A.L.R.3d 1066.

Removal or demolition of building or other structure as basis for mechanics’ lien. 74 A.L.R.3d 386.

Vacation and sick pay and other fringe benefits as within mechanic’s lien statute. 20 A.L.R.4th 1268.

Am. Jur.

53 Am. Jur. 2d, Mechanics’ Liens §§ 1, 2, 22 et seq.

12A Am. Jur. Legal Forms 2d, Mechanics Liens §§ 173:1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Construction, manufacture, or repair, what constitutes.

3. Persons entitled to lien.

4. Surrender of possession.

5. Priority of liens.

6. Liability.

7. Actions to enforce liens.

8. Judgment.

1. In general.

Mechanic’s lien and storage lien statutes which were advanced by a party, who repaired and then stored an excavator, did not allow attorney’s fees. Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So.3d 659, 2013 Miss. App. LEXIS 175 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 586 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 587 (Miss. 2013).

The lien of one making necessary repairs to an automobile is not lost by a void sale to foreclose the lien at which he became the purchaser. Mississippi Motor Finance, Inc. v. Thomas, 246 Miss. 14, 149 So. 2d 20, 1963 Miss. LEXIS 411 (Miss. 1963).

The right of a plaintiff to obtain a personal judgment where he asserts a mechanic’s lien against the truck was one which the plaintiff could exercise in his own discretion. Hannan Motor Co. v. Darr, 212 Miss. 870, 56 So. 2d 64, 1952 Miss. LEXIS 320 (Miss. 1952).

Whether a new battery, battery cable, additional oil pumps and several sets of “points” were reasonably necessary for the preservation and operation of an automobile and to prevent its deterioration would depend upon proof as to the conditions of those of the same kind and character that had been recently purchased for the same purpose at the time the last ones were installed. Eastex Finance Co. v. Bryant, 207 Miss. 414, 42 So. 2d 418, 1949 Miss. LEXIS 351 (Miss. 1949).

This section [Code 1942, § 353] does not merely give the mechanic the right to acquire a lien on machinery and equipment, but creates such lien. Billups v. Becker's Welding & Machine Co., 186 Miss. 41, 189 So. 526, 1939 Miss. LEXIS 219 (Miss. 1939); Buckwalter v. McElroy, 205 Miss. 54, 38 So. 2d 317, 1949 Miss. LEXIS 411 (Miss. 1949).

Statute declares right and lien had at common law and provides a method for enforcement thereof. J. A. Broom & Son v. S. S. Dale & Sons, 109 Miss. 52, 67 So. 659, 1915 Miss. LEXIS 112 (Miss. 1915).

2. Construction, manufacture, or repair, what constitutes.

Work of disassembling, hauling, and reassembling an oil well drilling rig does not constitute construction, manufacture, or repair within the meaning of this section [Code 1942, § 353], and such activities are insufficient to afford the person performing them a lien for the value of his services. White v. Cabot Corp., 194 So. 2d 499, 1967 Miss. LEXIS 1414 (Miss. 1967).

“Construct” as used in this section [Code 1942, § 353] providing that any article constructed shall be liable for price of labor and material employed in the constructing means to put together the constituent parts of something in their proper place and order, and lien given under this section may be enforced in same manner as in cases of lien for purchase money of goods. Buckwalter v. McElroy, 205 Miss. 54, 38 So. 2d 317, 1949 Miss. LEXIS 411 (Miss. 1949).

3. Persons entitled to lien.

Conditional vendor of oil well drilling rig is entitled to repossess the same from one who retained it and asserted a lien thereon for the cost of disassembling, transporting, and reassembling it, but who had done no work in connection with the rig which constituted construction, manufacture, or repair, as those words are used in this section [Code 1942, § 353]. White v. Cabot Corp., 194 So. 2d 499, 1967 Miss. LEXIS 1414 (Miss. 1967).

Where both the lessor and lessee requested the mechanic to perform necessary repairs upon the plane, it being agreed that the lessor was to pay for the major repairs and the lessee to pay for the minor repairs, in the absence of any agreement by the mechanic waiving his statutory lien for repairs upon the plane, or by which he contracted to waive his right to enforce a mechanic’s lien thereon, the mechanic had a lien upon the airplane for minor repairs made, although such were chargeable to the lessee. Taylor v. Elliott, 229 Miss. 530, 91 So. 2d 711, 1956 Miss. LEXIS 636 (Miss. 1956).

Service station operator is not entitled to lien under this section [Code 1942, § 353] on an automobile for accessories which were sold in regular course of business and where no labor was both performed and charged for in the installation of such accessories in the repairing of the automobile. Eastex Finance Co. v. Bryant, 207 Miss. 414, 42 So. 2d 418, 1949 Miss. LEXIS 351 (Miss. 1949).

Operator of service station not entitled to lien under this section [Code 1942, § 353] for gas, oil, grease, brake fluid and wash jobs supplied for automobile. Eastex Finance Co. v. Bryant, 207 Miss. 414, 42 So. 2d 418, 1949 Miss. LEXIS 351 (Miss. 1949).

A garageman who repaired a truck at the request of the lessee who was under contractual obligation to keep it in repair was entitled to retain possession of the truck until payment of the repair bill as against one who had purchased the truck from the original lessor. Martin v. Broadhead, 202 Miss. 281, 32 So. 2d 433, 1947 Miss. LEXIS 274 (Miss. 1947).

Where dealer took in automobile on trade with knowledge of outstanding conditional sales contract requiring buyer to keep automobile repaired, and made repairs and later sold automobile and assigned asserted mechanic’s lien for repairs to buyer, neither dealer nor buyer, assignee, could claim lien as against conditional vendor, and vendor could recover in replevin. Federal Credit Co. v. Holloman, 165 Miss. 211, 147 So. 485, 1933 Miss. LEXIS 305 (Miss. 1933).

Dealer taking over automobile with knowledge of outstanding conditional sales contract, requiring buyer to keep it in repair, acquired no lien against itself for repairs made by it. Federal Credit Co. v. Holloman, 165 Miss. 211, 147 So. 485, 1933 Miss. LEXIS 305 (Miss. 1933).

One selling tires in usual course of trade and placing them on automobile held not entitled to mechanic’s lien on automobile. Hardy v. Watkins, 150 Miss. 861, 117 So. 255, 1928 Miss. LEXIS 173 (Miss. 1928).

Mechanic has no lien on jitney bus for charges for “going after and bringing in the car” in order to repair it. Orr v. Jackson Jitney Car Co., 115 Miss. 140, 75 So. 945, 1917 Miss. LEXIS 193 (Miss. 1917).

4. Surrender of possession.

The holder of a mechanic’s lien created by this section [Code 1942, § 353] may not resort to replevin to recover possession of property repaired after having parted with possession. Central Motor Exchange v. Thompson, 236 So. 2d 736, 1970 Miss. LEXIS 1496 (Miss. 1970).

Where machinery and equipment had been in the possession or under the control of one claiming a mechanic’s lien while being prepared, and he surrendered possession thereof to the owner, the lien was retained to the extent that is allowed in cases of liens for purchase money of goods, and was enforceable while the property remained in the hands of the owner, or in the hands of one deriving title or possession through the owner, with notice that the indebtedness represented by the mechanic’s lien was unpaid. Billups v. Becker's Welding & Machine Co., 186 Miss. 41, 189 So. 526, 1939 Miss. LEXIS 219 (Miss. 1939).

5. Priority of liens.

Under Code 1972, §75-9-310, a repairman’s lien acquired under Code 1972, §85-7-101 for services in repairing plaintiff’s tractor while under lease to a third party, would take priority over plaintiff’s prior perfected security interest governing the lease, notwithstanding the fact that the third party defaulted on the lease agreement with plaintiff subsequent to the repairman’s return of the tractor to the third party, where the third party voluntarily restored possession of the tractor to defendant who thus had a possessory lien; the provisions of Code 1972, §§75-9-310 and85-7-101 manifest an intention that such statutes are to be read and interpreted in pari materia. Thorp Commercial Corp. v. Mississippi Road Supply Co., 348 So. 2d 1016, 22 U.C.C. Rep. Serv. (CBC) 818, 1977 Miss. LEXIS 2117 (Miss. 1977).

A mechanic’s lien for necessary repairs to an automobile is superior to the lien of a conditional vendor. Mississippi Motor Finance, Inc. v. Thomas, 246 Miss. 14, 149 So. 2d 20, 1963 Miss. LEXIS 411 (Miss. 1963).

Where purchaser of a car under a retained title contract incurred a bill for repairs which was necessary for preservation and the operation of the automobile and to prevent its deterioration, the mechanic was entitled to enforce a mechanic’s lien which was superior to the rights of the seller who repossessed the car upon a default on the contract. Commercial Sec. Co. v. Kriner, 53 So. 2d 92 (Miss. 1951).

One who claims his mechanic’s lien on motor truck for its repair is superior to lien retained for unpaid purchase price has burden of establishing that labor and materials furnished constitute repairs, as distinguished from articles purchased for truck or fuel to enable it to operate, and that such repairs were reasonably necessary to preserve truck and permit its ordinary operation and prevent deterioration. Funchess v. Pennington, 205 Miss. 500, 39 So. 2d 1, 1949 Miss. LEXIS 447 (Miss. 1949).

Mechanic’s and materialman’s lien for labor performed and materials furnished in connection with installations of fixed machinery and equipment to prepare manufacturing plant for operation has priority over lien of deed of trust executed after mechanic acquired his lien in compliance with prior agreement to secure note by deed of trust on after acquired property in nature of machinery and equipment to be acquired and used in manufacturing business. Buckwalter v. McElroy, 205 Miss. 54, 38 So. 2d 317, 1949 Miss. LEXIS 411 (Miss. 1949).

Where one, who had made repairs to a truck, intervened in an action by subsequent repairmen against the conditional vendee of the truck to recover for their labor and to impress a lien upon the truck, and, the truck having been condemned to be sold to pay for all the repairs, took an assignment of the subsequent repairmen’s lien and their interest in the judgment and then purchased the truck at the sale thereunder, thereby acquiring the vendee’s title, which was the ownership of the truck subject to the lien of the conditional sales contract, the mechanic’s liens were not merged into the judgment, but remained in effect as against the vendor’s assignee, and the asignee was entitled to dispossess the holder of the mechanic’s liens only when it had paid him what the purchaser of the truck owed him, if anything, for the repairs to it. General Motors Acceptance Corp. v. Shoemake, 192 Miss. 446, 6 So. 2d 309, 1942 Miss. LEXIS 32 (Miss. 1942).

With respect to the priority as between a mechanic’s lien claimant and the holder of a deed of trust, the presumption would be that the owner of the property informed the beneficiary in the deed of trust of the existence of such mechanic’s lien, since it would have been unlawful for the owner to have obtained the loan and to have given a lien in favor of the beneficiary in such deed of trust without advising her of the existence of any lien then outstanding against the property. Billups v. Becker's Welding & Machine Co., 186 Miss. 41, 189 So. 526, 1939 Miss. LEXIS 219 (Miss. 1939).

As to a claimed mechanic’s lien for indebtedness incurred prior to the execution of a deed of trust, the burden of proof was upon the beneficiary of the deed of trust to show that she acquired her lien without notice of the mechanic’s lien created by this section [Code 1942, § 353]; and to support the affirmative defense of lack of knowledge, it was not sufficient merely to show that the attorney of such beneficiary, who negotiated the loan, made a diligent inquiry and investigation and failed to acquire any notice or knowledge of the existence of the mechanic’s lien. Billups v. Becker's Welding & Machine Co., 186 Miss. 41, 189 So. 526, 1939 Miss. LEXIS 219 (Miss. 1939).

As to items of labor done and material furnished subsequent to the execution of a deed of trust on the property in question, the mechanic’s lien would be paramount to the lien of the deed of trust where it was shown that the labor done and materials furnished were necessary to permit the operation and to prevent the deterioration of the property. Billups v. Becker's Welding & Machine Co., 186 Miss. 41, 189 So. 526, 1939 Miss. LEXIS 219 (Miss. 1939).

Lien on motortruck for repairs necessary for operation thereof and to prevent its deterioration, made at request of assignee of buyer of truck on conditional sales contract under which seller retained title, held superior to seller’s lien notwithstanding mechanic’s knowledge of seller’s lien, since repairs were impliedly authorized by seller. De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342, 1936 Miss. LEXIS 279 (Miss. 1936).

Repair lien on automobile inferior to rights of a seller with title retained, unless repair shown reasonably necessary to preserve property and permit its operation. Moorhead Motor Co. v. H. D. Walker Auto Co., 133 Miss. 63, 97 So. 486, 1923 Miss. LEXIS 114 (Miss. 1923).

6. Liability.

Fact that conditional seller of motortruck, who had retained title, impliedly authorized repair so as to render truck subject to repairman’s lien, did not create relation of debtor and creditor between repairman and conditional seller so as to render seller personally liable for repairs. De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342, 1936 Miss. LEXIS 279 (Miss. 1936).

Conditional seller of motortruck who retained title is not liable in case of a deficiency for repairs on truck made at instance of conditional buyer or his assignee, since liability of seller extends no further than the property. De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342, 1936 Miss. LEXIS 279 (Miss. 1936).

7. Actions to enforce liens.

Repair company was not entitled to summary judgment on its mechanic’s lien claim under Miss. Code Ann. §85-7-101, for the labor and material to repair an excavator, because there were genuine issues of material facts in dispute, as the reasonableness or necessity of the repairs was not addressed. Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So.3d 659, 2013 Miss. App. LEXIS 175 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 586 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 587 (Miss. 2013).

The holder of a statutory mechanic’s lien who has parted with possession of that property can only enforce his lien in the manner and form that a purchase money lien may be enforced and cannot resort to replevin. Central Motor Exchange v. Thompson, 236 So. 2d 736, 1970 Miss. LEXIS 1496 (Miss. 1970).

Assignee of note and deed of trust covering machinery and equipment in manufacturing plant who files suit in chancery court for foreclosure of deed of trust, for appointment of receiver, for adjudication of priorities of liens and moves to abate prior action filed by mechanic to enforce his lien, must abide by equities of case resulting from fact that mechanic’s lien had been created in favor of mechanic without notice of existence of prior executed note containing agreement to subsequently give deed of trust on same property to which mechanic’s lien attached. Buckwalter v. McElroy, 205 Miss. 54, 38 So. 2d 317, 1949 Miss. LEXIS 411 (Miss. 1949).

In proceeding to enforce repairman’s lien on motortruck wherein conditional seller of truck appeared claiming the truck, interest of both mechanic and seller of truck should be ascertained. De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342, 1936 Miss. LEXIS 279 (Miss. 1936).

Suit to enforce lien on automobile is an action in rem. West Point Motor Car Co. v. McGhee, 122 Miss. 604, 84 So. 690, 1920 Miss. LEXIS 458 (Miss. 1920).

Materialman could not recover against owner of building for materials furnished contractor in the erection thereof where petition did not aver that owner was obligated to pay for such material and did not charge that at the time notice was given the owner was indebted to the contractor. Smith v. Frank Gardener Hardware & Supply Co., 83 Miss. 654, 36 So. 9, 1903 Miss. LEXIS 87 (Miss. 1904).

8. Judgment.

Plaintiff securing mechanic’s lien in justice court and judgment for debt may, on appeal, take judgment on appeal bond without establishing lien. Dudley v. Waltman, 156 Miss. 483, 126 So. 1, 1930 Miss. LEXIS 168 (Miss. 1930).

§ 85-7-103. Stable keepers; lien on animals.

The owner of every livery stable, sale stable, feed stable or public pasture shall have a lien on every horse, mule, cow, or other animal for the price of feeding, grooming, training, grazing, or keeping the same, at the instance of the owner of the animal, and shall have the right to retain possession of the animal until such price be paid. If the price be not paid in ten (10) days after it is due, the person to whom it is owing may commence suit therefor before a justice of the peace where the principal of the amount does not exceed Two Hundred Dollars ($200.00), and in the circuit court where it exceeds that sum, setting forth the amount of the debt, how it accrued, and a description of the animal; and, upon proof of the debt that it is due for feeding, grooming, training, grazing or keeping the animal, he shall be entitled to judgment against the owner for the amount due and sued for and the price of feeding, grooming, training, grazing and keeping the animal since the institution of the suit if the whole amount do not exceed the jurisdiction of the court, with costs as in other cases, and to a special order and execution for the sale of the property upon which the lien exists for the payment of such judgment and costs, and to an execution, as in other cases, for the residue of what remains unpaid after sale of the property. The lien created by this section shall be subordinate to any prior encumbrance on such animal of which the owner of the stable had notice, actual or constructive, unless the animal were fed, groomed, trained, grazed or kept by the consent of the encumbrancer.

HISTORY: Codes, 1892, § 2722; 1906, § 3082; Hemingway’s 1917, § 2442; 1930, § 2256; 1942, § 354; Laws, 1888, p. 94; Laws, 1934, ch. 311.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 85-7-105. Remedy where lienholder loses possession to owner.

If the lienholders mentioned in Sections 85-7-101 and 85-7-103 part with possession of the property, they shall retain their liens while the property remains in the hands of the owner, or one deriving title or possession through him, with notice that the price of the labor and materials or the price of feeding, grooming, training, grazing or keeping the same was unpaid, and may enforce the same in like manner as is provided in Sections 85-7-31 and 85-7-53.

HISTORY: Codes, 1880, § 1383; 1892, § 2715; 1906, § 3075; Hemingway’s 1917, § 2435; 1930, § 2257; 1942, § 355; Laws, 1968, ch. 303, § 1, eff from and after passage (approved August 6, 1968).

RESEARCH REFERENCES

ALR.

Demand for or submission to arbitration as affecting enforcement of mechanics’ lien. 73 A.L.R.3d 1042.

Removal or demolition of building or other structure as basis for mechanics’ lien. 74 A.L.R.3d 386.

Mortgagee-lender’s duty, in disbursing funds, to protect mortgagor against outstanding or potential mechanics’ liens against the mortgaged property. 30 A.L.R.4th 134.

JUDICIAL DECISIONS

1. In general.

2. Priority of liens.

3. Enforcement of liens.

1. In general.

The surrender of a truck by a garage man does not result in the garage man losing his lien thereon, except as against one deriving title or possession through the owner. Boydstun v. Cook & Co., 238 Miss. 324, 118 So. 2d 354, 1960 Miss. LEXIS 408 (Miss. 1960).

Where a purchaser of a car under a retained title contract incurred a bill for repairs which was necessary for preservation and the operation of the automobile and to prevent its deterioration, the mechanic was entitled to enforce a mechanic’s lien which was superior to the rights of the seller who repossessed the car upon a default on the contract. Commercial Sec. Co. v. Kriner, 53 So. 2d 92 (Miss. 1951).

A garageman surrendering possession of a repaired truck to its owner without collecting his repair charges did not lose his lien as against the holder of a deed of trust embracing the truck where there had been no breach of condition or foreclosure of the deed of trust. Watson v. Broadhead, 203 Miss. 142, 33 So. 2d 302, 1948 Miss. LEXIS 241 (Miss. 1948).

Where machinery and equipment had been in the possession or under the control of one claiming a mechanic’s lien while being repaired, and he surrendered possession thereof to the owner, the lien was retained to the extent that is allowed in cases of liens for purchase money of goods, and was enforceable while the property remained in the hands of the owner, or in the hands of one deriving title or possession through the owner, with notice that the indebtedness represented by the mechanic’s lien was unpaid. Billups v. Becker's Welding & Machine Co., 186 Miss. 41, 189 So. 526, 1939 Miss. LEXIS 219 (Miss. 1939).

2. Priority of liens.

Lien on motortruck for repairs necessary for operation thereof and to prevent its deterioration, made at request of assignee of buyer of truck on conditional sales contract under which seller retained title, was superior to seller’s lien notwithstanding surrender of possession and mechanic’s knowledge of seller’s lien, since repairs under such circumstances were impliedly authorized by seller. De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342, 1936 Miss. LEXIS 279 (Miss. 1936).

3. Enforcement of liens.

The holder of a statutory mechanic’s lien who has parted with possession of that property can only enforce his lien in the manner and form that a purchase money lien may be enforced and cannot resort to replevin. Central Motor Exchange v. Thompson, 236 So. 2d 736, 1970 Miss. LEXIS 1496 (Miss. 1970).

In proceeding to enforce repairman’s lien on motortruck wherein conditional seller of truck appeared claiming the truck, interest of both mechanic and seller of truck should be ascertained. De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342, 1936 Miss. LEXIS 279 (Miss. 1936).

Fact that conditional seller of motortruck, who had retained title, impliedly authorized repair so as to render truck subject to repairman’s lien, did not create relation of debtor and creditor between repairman and conditional seller so as to render seller personally liable for repairs. De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342, 1936 Miss. LEXIS 279 (Miss. 1936).

Conditional seller of motortruck who retained title is not liable in case of a deficiency for repairs on truck made at instance of conditional buyer or his assignee, since liability of seller extends no further than the property. De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342, 1936 Miss. LEXIS 279 (Miss. 1936).

§ 85-7-107. Lien on motor vehicle for labor and materials used in constructing, manufacturing or repairing vehicle; notice to legal owner and holder of any lien; judgment on lien; redemption; sale of vehicle.

All motor vehicles repaired for any person, and at his instance, shall be liable for the price of the labor and material employed in constructing, manufacturing or repairing the same; and the mechanic to whom the price of said labor and material may be due shall have the right to retain possession of such motor vehicles so repaired until the price be paid. If such price shall not be paid within thirty (30) days, and the person to whom such charges are payable and owing intends to commence suit as provided in this section, such person shall notify, by certified mail, the legal owner and the holder of any lien of the amount of charges due thereon and provide an opportunity for redemption. If such property has not been redeemed within five (5) days after the mailing of such certified letter, the person to whom such charges are payable and owing may commence suit in any court of competent jurisdiction, and upon proof of the value of the labor and materials employed in such repairs, manufacture or construction, and that such labor and materials furnished were reasonably necessary to prevent deterioration, permit operation and preserve the property, shall be entitled to judgment against the party for whom such labor was done or materials furnished, with costs, as in other cases, and to a special order for the sale of the property retained in his possession for the payment thereof, with costs, and to an execution, as in other cases, for the residue of what remains unpaid after sale of the property. The proceeds of the sale of such property in excess of the amount needed to pay the judgment and necessary expenses of the procedure required by this section shall be held by the person for a period of six (6) months, and if not reclaimed by the owner thereof within that time shall become the property of the county and be paid over to the chancery clerk of the county in which the sale was held to be deposited into the county general fund, subject however to any rights of recorded lienholders.

HISTORY: Laws, 1988, ch. 542, § 1; Laws, 2005, ch. 331, § 1, eff from and after July 1, 2005.

Amendment Notes —

The 2005 amendment deleted “titled under The Mississippi Motor Vehicle Title Law” following “All motor vehicles” in the first sentence.

Cross References —

Mississippi Motor Vehicle Title Law, see §63-21-1, et seq.

Lien on all carriages, buggies, wagons, plows, or any article constructed, manufactured or repaired for labor and materials, see §85-7-101.

RESEARCH REFERENCES

ALR.

Loss of garageman’s lien on repaired vehicle by owner’s use of vehicle. 74 A.L.R.4th 90.

Am. Jur.

12A Am. Jur. Legal Forms 2d, Mechanics Liens §§ 173:1 et seq.

JUDICIAL DECISIONS

1. Reserved for future use.

2. Construction with other law.

3. Defenses.

1. Reserved for future use.

2. Construction with other law.

Defendants were properly convicted of armed robbery (Miss. Code Ann. §97-3-79) for taking a car from the victim’s repair shop at gunpoint; although one defendant had legal title to the car, the victim had the right of possession of the car through his mechanic’s lien under Miss. Code Ann. §85-7-107. Veazy v. State, 113 So.3d 1226, 2013 Miss. LEXIS 72 (Miss. 2013).

The mechanic’s lien statute limits recovery to the costs of labor and materials, unlike Miss. Code Ann. §85-7-251, which governs liens available for towing and storing motor vehicles. Allstate Ins. Co. v. Green, 794 So. 2d 170, 2001 Miss. LEXIS 159 (Miss. 2001).

3. Defenses.

Where a defendant seeking to set aside a default judgment had a colorable defense to a claim asserted under the mechanic’s lien statute, since the car at issue had never been titled in Mississippi, the trial court erred in not setting aside the default judgment. Allstate Ins. Co. v. Green, 794 So. 2d 170, 2001 Miss. LEXIS 159 (Miss. 2001).

Article 7. Owner’s Lien for Rent on Personal Property in Self-Storage Facility.

§ 85-7-121. Definitions.

As used in Sections 85-7-121 through 85-7-129, the following terms shall have the meaning ascribed to them herein, unless the context clearly requires otherwise:

“Default” means the failure timely to perform any obligation or duty set forth in Sections 85-7-121 through 85-7-129 and the rental agreement;

“Last known address” means that address provided by the occupant in the latest rental agreement or the address provided by the occupant in a subsequent written notice of a change of address;

“Leased space” means the individual storage space at the self-storage facility which is leased or rented to an occupant pursuant to a rental agreement.

“Occupant” means a person, his sublessee, successor or assign entitled to the use of a leased space at a self-storage facility under a rental agreement to the exclusion of others;

“Owner” means the owner, operator, lessor or sublessor of a self-storage facility, an agent or any person authorized to manage the facility or to receive rent from an occupant under a rental agreement. The term “owner” shall not be construed to mean a warehouseman unless the owner issues a warehouse receipt, bill of lading or other document of title for the personal property stored;

“Personal property” means movable property not affixed to land and includes, but is not limited to, goods, wares, merchandise, watercraft, motor vehicles and household items;

“Rental agreement” means any written agreement or lease that establishes or modifies the terms, conditions, rules or any other provisions concerning the use and occupancy of a self-storage facility;

“Self-storage facility” means any real property used for the purpose of renting or leasing individual storage space to occupants who are to have access to such space for the purpose of occupants themselves storing and removing personal property on “self-service basis”; provided, however, that an occupant may not use a leased space for residential purposes.

HISTORY: Laws, 1988, ch. 595, § 1, eff from and after July 1, 1988.

§ 85-7-123. Owner’s lien for rent on personal property in self-storage facility.

The owner has a lien upon all personal property located at a self-storage facility for rent, labor or other charges, present or future, in relation to the personal property and for expenses necessary for its preservation or expenses reasonably incurred in its sale or other disposition pursuant to Sections 85-7-121 through 85-7-129. The lien provided for in this section is superior to any other lien or security interest except those which are perfected and recorded in Mississippi prior to the date of default under the rental agreement and except any tax lien as otherwise provided by law. The lien attaches as of the date the personal property is placed in the leased space and the rental agreement shall contain a statement in bold type notifying the occupant of the existence of the lien and that the property stored in the leased space may be sold to satisfy the lien if the occupant is in default.

HISTORY: Laws, 1988, ch. 595, § 2, eff from and after July 1, 1988.

§ 85-7-125. Enforcement of owner’s lien.

The enforcement of the owner’s lien against an occupant who is in default shall be in accordance with the following:

No enforcement action shall be taken by the owner, other than denial of access, as provided for in the rental agreement until the occupant has been in default continuously for a period of fourteen (14) days.

During the default period the occupant shall be notified in writing. The notice shall be delivered in person or sent by United States certified mail, return receipt requested, to the last known address of the occupant. Notices shall be deemed delivered when deposited in the United States mail with postage paid. The notice shall include an itemized statement of the owner’s claim showing the sum due at the time of the notice, the date when the sum became due and any other sums that shall accrue. The notice shall also include a demand for payment of the sum due within a specified time not less than fourteen (14) days after the date of the notice, a statement that the contents of the occupant’s lease space are subject to the owner’s lien, the name, street address and telephone number of the owner, or his designated agent, whom the occupant may contact to respond to the notice, a conspicuous statement that unless the claim is paid within the time stated, the personal property will be advertised for public or private sale or will be otherwise disposed of at a specified time and place.

After the expiration of the time given in the owner’s notice, the owner shall publish, in legal notices, advertisement of the sale to the highest bidder in a newspaper of general circulation where the self-storage facility is located. The notice shall include the address of the self-storage facility where the personal property is located, and the name of the occupant, and the time, place and manner of the sale.

A sale to the highest bidder shall take place not sooner than fifteen (15) days after the publication. If there is no newspaper of general circulation in the county in which the self-storage facility is located, the advertisement shall be posted at least ten (10) days before the date of the sale and in not less than six (6) conspicuous places in the neighborhood where the self-storage facility is located.

If no one purchases the property at the sale and if the owner has complied with the foregoing procedures, the owner may otherwise dispose of the property. Any sale or disposition of the personal property shall be held at the self-storage facility or at the nearest suitable place to the place the personal property is held or stored.

HISTORY: Laws, 1988, ch. 595, § 3, eff from and after July 1, 1988.

§ 85-7-127. Satisfaction of lien; sale of property.

  1. Before any sale or other disposition of personal property pursuant to Sections 85-7-121 through 85-7-129, the occupant may pay the amount necessary to satisfy the owner’s lien and the reasonable expenses incurred under Sections 85-7-121 through 85-7-129, and thereby redeem the personal property. Upon the payment and satisfaction of the amount necessary to satisfy the lien, the owner shall return the personal property and thereafter the owner shall have no liability to any person with respect to such personal property. Unless the rental agreement specifically provides otherwise and until a lien sale under Sections 85-7-121 through 85-7-129, the exclusive care, custody and control of all personal property stored in the leased self-storage space remains vested in the occupant.
  2. The owner may buy at any sale of personal property to enforce the owner’s lien.
  3. A purchaser in good faith of the personal property sold to satisfy the owner’s lien takes the property free of any rights of persons against whom the lien was valid, despite noncompliance by the owner with the requirements of this section.
  4. In the event of a sale under Sections 85-7-121 through 85-7-129, the owner may satisfy his lien from the proceeds of the sale but shall hold the balance, if any, for delivery on demand to the occupant. In no event shall the owner’s liability exceed the proceeds of the sale. If the occupant does not claim the balance of the proceeds within one (1) year of the date of the sale, such balance shall be deemed to be abandoned and the owner shall pay such balance to the Treasurer of the State of Mississippi, who shall deposit such funds into the General Fund.

HISTORY: Laws, 1988, ch. 595, § 4, eff from and after July 1, 1988.

§ 85-7-129. Application of Sections 85-7-121 through 85-7-129 to rental agreements entered into on or after July 1, 1988.

The provisions of Sections 85-7-121 through 85-7-129 shall apply only to rental agreements entered into on or after July 1, 1988. Rental agreements entered into prior to July 1, 1988, shall remain valid.

HISTORY: Laws, 1988, ch. 595, § 5, eff from and after July 1, 1988.

Article 9. Water, Oil and Gas Wells.

§ 85-7-131. Liens on water, oil or gas wells; effect as to purchasers, etc., without notice.

Every water well or oil and gas well, and any fixed machinery, gearing or other fixture that may or may not be used or connected therewith, shall be liable for services or construction and the debt shall be a lien thereon. As to oil and gas wells, the operator thereof shall have a lien upon the interest of each nonoperator owner of an interest in the mineral leasehold estate for the nonoperator’s proportionate part of the labor, material and services rendered by the operator or for the operator’s account on behalf of each nonoperator in the drilling, completion, recompletion, reworking or other operations of the oil and gas well. If the structure is a water well, the lien shall extend only to all pumps, pipes, equipment therein and all water well appurtenances. If the structure is an oil or gas well, the lien shall extend to the nonoperator’s interest in the mineral estate and the fixtures and equipment in the producing unit assigned to the well by the State Oil and Gas Board. The lien shall take effect, as to purchasers or encumbrancers for a valuable consideration without notice thereof, only from the time of commencing suit to enforce the lien, or from the time of filing the contract under which the lien arose, or notice thereof, in the office of the clerk of the chancery court, as hereinafter stated; delivery of material to the job is prima facie evidence of its use therein, and use of water from a water well is prima facie evidence of acceptability of the well. In the case of oil and gas wells, the lien shall take effect, as to purchasers or encumbrancers for a valuable consideration without notice thereof, only from the time of filing notice of the lien as provided by Section 85-7-133.

HISTORY: Codes, Hutchinson’s 1848, ch. 45, art. 6 (1); 1857, ch. 39, art. 1; 1871, § 1603; 1880, § 1378; 1892, § 2698; 1906, § 3058; Hemingway’s 1917, § 2418; 1930, § 2258; 1942, § 356; Laws, 1926, ch. 150; Laws, 1928, ch. 137; Laws, 1962, ch. 488, §§ 1, 2; Laws, 1964, ch. 291; Laws, 1979, ch. 379; Laws, 2010, ch. 372, § 1; Laws, 2014, ch. 487, § 18, eff from and after passage (approved Apr. 11, 2014).

Amendment Notes —

The 2010 amendment, in the first sentence, inserted “or equipment rented or leased”; in the second and eighth sentences, inserted “rental or lease equipment suppliers”; and in the eighth sentence, inserted “rental or lease equipment supplier’s” and “or rental or lease equipment.”

The 2014 amendment rewrote the section, which read: “Every house, building, water well or structure of any kind, and any fixed machinery, gearing or other fixture that may or may not be used or connected therewith, railroad embankment, erected, constructed, altered or repaired, and every subdivision of property or subdivided property which required services, designs or construction in designing or laying out of streets or subdividing or construction of streets, sewerage, water or other utilities to be furnished by the said subdivision or by the various owners or holders or creators of said subdivision or subdivided property or individual lot or lots in connection therewith, whether inside of a municipality or outside thereof, shall be liable for the debt contracted and owing, for labor done or materials furnished or equipment rented or leased, or architectural engineers’ and surveyors’ or contractors’ service rendered about the erection, construction, alteration or repairs thereof; and debt for such services or construction shall be a lien thereon. The architects, engineers, surveyors, laborers, rental or lease equipment suppliers and materialmen and/or contractors who rendered services and constructed the improvements shall have a lien therefor. Further, as to oil and gas wells, the operator thereof shall have such a lien upon the interest of each nonoperator owner of an interest in the mineral leasehold estate for such nonoperator’s proportionate part of such labor, material and services rendered by the operator or for the operator’s account in behalf of each nonoperator in the drilling, completion, recompletion, reworking or other operations of such oil and gas well. If such house, building, structure, or fixture be in a city, town or village, the lien shall extend to and cover the entire lot of land on which it stands and the entire curtilage thereto belonging; or, if not in a city, town or village, the lien shall extend to and cover one (1) acre of land on which the same may stand, if there be so much, to be selected by the holder of the lien. If the structure be a water well, the lien shall extend only to all pumps, pipes, equipment therein and all water well appurtenances. If the structure be an oil or gas well, the lien shall extend to the nonoperator’s interest in the mineral estate and the fixtures and equipment in the producing unit assigned such well by the State Oil and Gas Board. If the structure be a railroad or railroad embankment, the lien shall extend to and cover the entire roadbed and right-of-way, depots and other buildings used or connected therewith. If the services of the architect, surveyor, engineer, laborers, materialmen, rental or lease equipment suppliers or of the contractors shall be upon the whole subdivision, the lien shall extend to and cover the entire subdivision; but if a part only of the land is subdivided and laborers’, materialmen’s, rental or lease equipment suppliers’, architects’, surveyors’ or engineers’ services are required and contractors are employed, then the lien shall extend to only that portion of said property upon which the services were required or upon which or in connection with which the work was done or the materials or rental or lease equipment were furnished. Such lien shall take effect as to purchasers or encumbrancers for a valuable consideration without notice thereof, only from the time of commencing suit to enforce the lien, or from the time of filing the contract under which the lien arose, or notice thereof, in the office of the clerk of the chancery court, as hereinafter stated; delivery of material to the job is prima facie evidence of its use therein, and use of water from a water well is prima facie evidence of acceptability of the well. In the case of oil and gas wells, such lien shall take effect as to purchasers or encumbrancers for a valuable consideration without notice thereof, only from the time of filing notice of such lien as provided by Section 85-7-133.”

Cross References —

Arbitration of controversies arising out of construction contracts and related agreements, and failure of arbitration to effect liens, see §11-15-101.

Creation of lien, see §85-7-261.

Liens on the same building being concurrent, see §85-7-263.

RESEARCH REFERENCES

ALR.

Right to mechanic’s lien as for “labor” or “work,” in case of preparatory or fabricating work done on materials intended for use and used in particular building or structure. 25 A.L.R.2d 1370.

Sufficiency of notice, claim, or statement of mechanic’s lien with respect to nature of work. 27 A.L.R.2d 1169.

Mechanic’s lien for grading, clearing, filling, landscaping, excavating, and the like. 39 A.L.R.2d 866.

Right to mechanic’s lien upon leasehold for supplying labor or material in attaching or installing fixtures. 42 A.L.R.2d 685.

Validity and effect of contract provision against mechanic’s lien. 76 A.L.R.2d 1087.

Amendment of statement of claim of mechanic’s lien as to designation of property owner. 81 A.L.R.2d 681.

Swimming pool as lienable item within mechanic’s lien statute. 95 A.L.R.2d 1371.

Charge for use of machinery, tools, or appliances used in construction as basis for mechanics’ lien. 3 A.L.R.3d 573.

Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanics’ lien, or as extending time for filing such a lien. 51 A.L.R.3d 1087.

Assertion of statutory mechanic’s or materialman’s lien against oil and gas produced or against proceeds attributable to oil and gas sold. 59 A.L.R.3d 278.

Enforceability of mechanic’s lien attached to leasehold estate against landlord’s fee. 74 A.L.R.3d 330.

Removal or demolition of building or other structure as basis for mechanics’ lien. 74 A.L.R.3d 386.

Release or waiver of mechanic’s lien by general contractor as affecting rights of subcontractor or materialman. 75 A.L.R.3d 505.

Who is the “owner” within mechanic’s lien statute requiring notice of claim. 76 A.L.R.3d 605.

Mortgagee-lender’s duty, in disbursing funds, to protect mortgagor against outstanding or potential mechanics’ liens against the mortgaged property. 30 A.L.R.4th 134.

Delivery of material to building site as sustaining mechanic’s lien-modern cases. 32 A.L.R.4th 1130.

Liability of purchaser of real estate on mechanic’s lien based on goods or labor supplied to vendor but filed after title passed. 33 A.L.R.4th 1017.

Landlord’s liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

Am. Jur.

53 Am. Jur. 2d, Mechanics’ Liens §§ 65 et seq.

17 Am. Jur. Pl & Pr Forms (Rev), Mechanics’ Liens, Forms 1 et seq.

12A Am. Jur. Legal Forms 2d, Mechanics’ Liens §§ 173:9 et seq. (establishment of mechanics’ liens).

12A Am. Jur. Legal Forms 2d, Mechanics’ Liens §§ 173:57 et seq. (waiver, discharge, subordination, and assignment of mechanics’ liens).

CJS.

56 C.J.S., Mechanics’ Liens §§ 68 et seq.

Law Reviews.

The Effect of Bankruptcy and Encumbrances on Mineral Interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

JUDICIAL DECISIONS

I. Generally.

1. In general.

2. Contract—necessity and sufficiency of.

3. —Contract, assignment of.

4. Attachment of lien.

5. Property subject to lien.

6. Persons entitled to lien.

7. Notice.

8. Enforcement of lien.

9. Judgment.

10. Assignment of lien.

11. Waiver of lien.

II. Priority of Liens.

12. Generally.

13. Federal tax liens.

14. Mortgages.

15. Liens encompassing equipment or machinery.

16. Waiver or estoppel.

17. Pleadings; burden of proof.

I. Generally.

1. In general.

Lien arising automatically under Mississippi construction statute was statutory lien, not judicial lien subject to avoidance as impairing Chapter 7 debtors’ homestead exemption, though creditor could not enforce lien without filing action, and creditor filed enforcement action and obtained judgment prepetition; judgment did not transform statutory lien into judgment lien. In re Wiltcher, 204 B.R. 488, 1996 Bankr. LEXIS 1747 (Bankr. S.D. Miss. 1996).

Construction lender has no duty of reasonable diligence in disbursing to owner proceeds of construction loan, such that materialmen might recover from lender for losses caused thereby; materialmen hold lien against property only to extent that they have brought themselves within terms of statute; and, automatic stay incident to filing of petition in bankruptcy does not prohibit materialman from filing notice of its lien under statute. Riley Bldg. Supplies, Inc. v. First Citizens Nat'l Bank, 510 So. 2d 506, 1987 Miss. LEXIS 2626 (Miss. 1987).

Construction lien perfected under §85-7-131 by filing of notice with chancery clerk remains valid through federal bankruptcy proceedings. In re Simmons, 765 F.2d 547, 1985 U.S. App. LEXIS 20573 (5th Cir. Miss. 1985).

A suit to establish a materialman’s lien may be combined with a suit for a personal judgment as an alternative in the declaration; and in such case the declaration need not set forth the allegations in separate counts. Evans v. Central Service & Supply Co., 226 So. 2d 616, 1969 Miss. LEXIS 1308, 1969 Miss. LEXIS 1309 (Miss. 1969).

To obtain a materialman’s statutory lien, statutory prerequisites must be strictly complied with. Jones Supply Co. v. Ishee, 249 Miss. 515, 163 So. 2d 470, 1964 Miss. LEXIS 412 (Miss. 1964).

The legislature intended that a lien under this section [Code 1942, § 356] should not be limited to a single lot if the curtilage included more than one lot. Vinson v. Cooley, 54 So. 2d 750 (Miss. 1951).

A mechanic’s lien is unknown either at law or in equity and exists only by statute and can be enforced only as the statute provides. Pincus v. Collins, 198 Miss. 283, 22 So. 2d 361, 1945 Miss. LEXIS 194 (Miss. 1945).

Mechanic’s lien statute does not prevent the creation of a contract lien in the nature of a mortgage to cover in the price under a mechanic’s or materialman’s contract. Pincus v. Collins, 198 Miss. 283, 22 So. 2d 361, 1945 Miss. LEXIS 194 (Miss. 1945).

2. Contract—necessity and sufficiency of.

Plaintiffs contended and defendant agreed that because defendant failed to have both plaintiffs, as tenants by the entirety, execute the construction contract, the lien did not attach to the property as a means of securing the debt owed only by one plaintiff to defendant, but the other plaintiff’s alleged knowledge and consent to work being done on property she owned might amount to authorization, regardless of whether or not she was a signatory to the contract, and summary judgment was inappropriate at this stage. Ward v. McCammon (In re Ward), 2014 Bankr. LEXIS 1200 (Bankr. N.D. Miss. Mar. 28, 2014).

Workmen made a prima facie case of lien under §85-7-131, requiring defendants to go forward with proof to overcome such showing, where the building owners authorized the lessee of the building to arrange for work to be done on the building, where the lease specifically required that such work be done, and where the lessee authorized a franchisor to act in this regard with the building owner’s full awareness of such fact. Graham v. Pugh, 417 So. 2d 536, 1982 Miss. LEXIS 2027 (Miss. 1982).

The testimony of materialmen that a property owner had verbally agreed to pay for materials sold by them to a contractor who abandoned construction of a home for the owner prior to its completion was insufficient, in the face of the owner’s denial, to entitle them to a lien upon her property. Phillips v. F. G. & H. Millwork Mfg. Co., 190 So. 2d 843, 1966 Miss. LEXIS 1399 (Miss. 1966).

Contract whereby contractor who constructed a house retained a lien thereon until he had been paid in full created a contract lien in the nature of a mortgage and not merely a mechanic’s lien, since the law would put in the mechanic’s lien without a contract provision to that effect. Pincus v. Collins, 198 Miss. 283, 22 So. 2d 361, 1945 Miss. LEXIS 194 (Miss. 1945).

All liens are created by law or by contract, and to establish a lien the contract must be made by the owner of the property upon which a lien is sought to be impressed. Hollis & Ray v. Isbell, 124 Miss. 799, 87 So. 273, 1921 Miss. LEXIS 180 (Miss. 1921).

The contract may be express or implied. Hollis & Ray v. Isbell, 124 Miss. 799, 87 So. 273, 1921 Miss. LEXIS 180 (Miss. 1921).

It is not necessary to the validity of the lien that the contract be in writing. Harrison v. Breeden, 8 Miss. 670, 1843 Miss. LEXIS 137 (Miss. 1843).

3. —Contract, assignment of.

Builder’s contract may be assigned before service of statutory notice on owner, and assignee thereof will be entitled to proceeds thereof notwithstanding that materialmen and subcontractors had furnished materials and labor which had not been paid for. Dleta Lumber Co. v. Greenwood Bank & Trust Co., 123 Miss. 772, 86 So. 590, 1920 Miss. LEXIS 79 (Miss. 1920).

4. Attachment of lien.

The seller of a gas heating and cooking plant under a contract providing that it should remain personal property cannot waive such provision by an action to impress a lien on the building in which the plant is placed, since he has no right to waive the provision without the consent of the owners of the realty, it being a mutually beneficial provision, and greatly to the interest of the owner that no lien exist on the realty. Mississippi Butane Gas System Co. v. Glisson, 194 Miss. 457, 10 So. 2d 358, 1942 Miss. LEXIS 164 (Miss. 1942).

Owner employing contractor is not liable to materialman and laborers, unless indebted to contractor when notified of claims. Citzens' Lumber Co. v. Netterville, 137 Miss. 310, 102 So. 178, 1924 Miss. LEXIS 215 (Miss. 1924).

Owner taking possession of unfinished house did not thereby accept contractor’s work and become liable therefor. Robinson v. De Long, 118 Miss. 280, 79 So. 95, 1918 Miss. LEXIS 74 (Miss. 1918).

Wife contracting with husband for erection of a building on her separate property and paying him therefor, is liable for materials furnished and a lien may be established against her property. Banks & Co. v. Pullen, 113 Miss. 632, 74 So. 424, 1917 Miss. LEXIS 134 (Miss. 1917).

Owner who employed mechanic to furnish material and improve house is not, nor is the house, liable to third party materialmen seeking to enforce the lien of this section [Code 1942, § 356], unless indebted to mechanic when notified, and credited with any sum paid or agreed to be paid for materials to others before such notice. Lake v. Brannin, 90 Miss. 737, 44 So. 65, 1907 Miss. LEXIS 107 (Miss. 1907).

Installation of a plant for generating electric light on a steamboat gives rise to the lien. Mulholland v. Thompson-Houston Electric Co., 66 Miss. 339, 6 So. 211, 1899 Miss. LEXIS 104 (Miss. 1889).

Attaching gas fixtures to a building to be used therein gives rise to the lien. Joseph Baum & Co. v. Covert, 62 Miss. 113, 1884 Miss. LEXIS 31 (Miss. 1884).

5. Property subject to lien.

Where the owner of a service station did not consent either expressly or impliedly to the erection of the awning at the service station, the seller could not enforce lien on the building or on the land. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

Where the lessor if not expressly, at least impliedly, authorized the lessee to repair the existing building and to construct a new one and therefore make a contract for that purpose with the lumber company, the lumber company acquired a lien on the building for such repair and construction and under this section [Code 1942, § 356] such lien extends to and covers the entire lot on which the buildings stand and the entire curtilage thereto belonging. Burwell v. Planters Lumber Co., 220 Miss. 79, 70 So. 2d 71, 1954 Miss. LEXIS 411 (Miss. 1954).

Mechanic’s lien claimant was without right to any claim against proceeds of fire insurance on building, in the absence of contract to insure for his benefit. Federal Land Bank v. Thames Lumber & Supply Co., 160 Miss. 335, 134 So. 154, 1931 Miss. LEXIS 188 (Miss. 1931), overruled, Evans v. Central Service & Supply Co., 226 So. 2d 616, 1969 Miss. LEXIS 1308, 1969 Miss. LEXIS 1309 (Miss. 1969).

Mechanic’s lien claimant who, in a petition seeking to enforce lien, did not properly select acre of rural land on which house stood, was not entitled to lien against land. Federal Land Bank v. Thames Lumber & Supply Co., 160 Miss. 335, 134 So. 154, 1931 Miss. LEXIS 188 (Miss. 1931), overruled, Evans v. Central Service & Supply Co., 226 So. 2d 616, 1969 Miss. LEXIS 1308, 1969 Miss. LEXIS 1309 (Miss. 1969).

Lien herein cannot be enforced against agricultural high school building of county. McKinnon v. Gowan Bros., 127 Miss. 545, 90 So. 243, 1921 Miss. LEXIS 256 (Miss. 1921).

No lien for labor and material furnished can attach to a state building, and, therefore, funds in hands of state agents for payment of contractor cannot be applied on claims for such labor and material unless authorized by the contract. United States Fidelity & Guaranty Co. v. Marathon Lumber Co., 119 Miss. 802, 81 So. 492, 1919 Miss. LEXIS 49 (Miss. 1919).

Public buildings are not included in the statute. Board of Supervisors v. Gillen, 59 Miss. 198, 1881 Miss. LEXIS 101 (Miss. 1881).

6. Persons entitled to lien.

Construction liens placed by a mortgagor on his property after the property had been foreclosed were invalid under Miss. Code Ann. §§85-7-131 and85-7-135 [repealed] because any repairs made by the mortgagor were made without authorization or knowledge of the purchaser at foreclosure. Pepper v. Homesales, Inc., 2009 U.S. Dist. LEXIS 16692 (S.D. Miss. Mar. 3, 2009).

A plaintiff who fails to establish ownership of property against which a lien is sought in the defendants is not entitled to a lien thereon. Evans v. Central Service & Supply Co., 226 So. 2d 616, 1969 Miss. LEXIS 1308, 1969 Miss. LEXIS 1309 (Miss. 1969).

A construction mortgagee who did not use reasonable diligence to see that funds advanced were used to pay materialmen and laborers, and whose advances were repaid out of a loan obtained from a mortgagee without notice of the unpaid bills, takes an assignment of the latter mortgage subject to the claims of materialmen. Southern Life Ins. Co. v. Pollard Appliance Co., 247 Miss. 211, 150 So. 2d 416, 1963 Miss. LEXIS 294 (Miss. 1963).

Materialman advancing money to a contractor to meet the contractor’s payroll, in addition to material furnished, in the construction of filling stations, could not, as against the owner contracting for such stations, be considered as furnishing labor, since he was not a party to the contract between the owner and the contractor, and the contractor was not, therefore, the materialman’s agent in the procurement of the labor. City Coal & Lumber Co. v. Gulf Refining Co., 184 Miss. 260, 185 So. 250, 1938 Miss. LEXIS 319 (Miss. 1939).

Builder under cost plus contract under which he agreed to supervise erection of building and to furnish and pay for all labor and materials held entitled to lien for expenditures and commission. Williams & Williams v. Warren, 134 Miss. 899, 99 So. 266, 1924 Miss. LEXIS 297 (Miss. 1924).

7. Notice.

Knowledge that a house is newly built and that the owner is behind in his payments to claimant is not the equivalent of actual notice of the claim of a materialman. Jones Supply Co. v. Ishee, 249 Miss. 515, 163 So. 2d 470, 1964 Miss. LEXIS 412 (Miss. 1964).

A bona fide purchaser or mortgagee obtains, under this section [Code 1942, § 356], an encumbrance superior to claims of materialmen and laborers unless it has actual notice thereof, knowledge of such facts as would put it on inquiry, or constructive notice by the lienors having filed their contracts or lis pendens notices of their liens. Southern Life Ins. Co. v. Pollard Appliance Co., 247 Miss. 211, 150 So. 2d 416, 1963 Miss. LEXIS 294 (Miss. 1963).

Where a construction contract between owner of premises and prime contractor did not require that the owner pay anything before the completion of the project, the owner may make payments to the prime contractor during progress of the work and he will not be held liable as to payments to subcontractors and materialmen who give statutory stop notice subsequent to making of payment. Williams v. Taylor, 216 Miss. 563, 62 So. 2d 883, 1953 Miss. LEXIS 669 (Miss. 1953).

A writ of seizure of the property is an essential step in the enforcement in rem of a mechanic’s lien against personal property when it is out of the possession of the person entitled to the lien; and the mere filing of a suit and of an ordinary summons to a defendant does not operate as constructive notice to subsequent purchasers under the general common-law doctrine of lis pendens. Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335, 1940 Miss. LEXIS 50 (Miss. 1940).

Notice that building was in course of construction was not sufficient notice to bank advancing money to owner secured by deed of trust of materialman’s rights under unrecorded contract, it being incumbent upon materialman either to file its contract for record, or to institute proceedings to enforce its lien, or to give notice in some manner. Walker v. Macon Creamery Co., 165 Miss. 121, 146 So. 442, 1933 Miss. LEXIS 284 (Miss. 1932).

Lis pendens notice of mechanic’s lien must be given to affect bona fide purchasers of realty without notice. McKenzie v. Fellows, 97 Miss. 31, 52 So. 628, 1910 Miss. LEXIS 253 (Miss. 1910).

8. Enforcement of lien.

Subcontractor’s claim under the statute failed as a matter of law because recovery required the subcontractor to prove it was in a contractual relationship with a hotel owner or the general contractor, something it did not prove and could not prove based on its lack of a certificate of responsibility voiding any contract. Ground Control, LLC v. Capsco Indus., 214 So.3d 232, 2017 Miss. LEXIS 93 (Miss. 2017).

A lien against the debtor’s home, which arose from the furnishing of labor to construct that home, was a statutory lien which could not be avoided in bankruptcy. In re Mitchell, 276 B.R. 142, 2001 Bankr. LEXIS 223 (Bankr. N.D. Miss. 2001).

A construction lien filed by paving company was enforceable against owner of property where there was sufficient evidence to establish that the general contractor was an implied agent acting within apparent authority granted by the owner when contracting with paving company. Bailey v. Worton, 752 So. 2d 470, 1999 Miss. App. LEXIS 707 (Miss. Ct. App. 1999).

In a laborers’ and materialmen’s lien on real property against the bank which held the mortgage on the property, the lienholder was entitled to judgment against the bank for the sum owed to him where the bank had foreclosed on the property after the filing of the construction lien and the initiation of the instant action and where, at the time of the foreclosure, the bank had full knowledge of the lien and the action. Self v. Nelson, 402 So. 2d 822, 1981 Miss. LEXIS 2126 (Miss. 1981).

A suit to enforce a materialman’s lien created by §85-7-131 was subject to the statute of limitations provided by §85-7-141. Further, the running of this one-year limitation period was suspended following the commencement of bankruptcy proceedings and did not commence to run again until the property at issue had been formally abandoned by order of the bankruptcy court. Home Bldg. Mart, Inc. v. Parker, 370 So. 2d 916, 1979 Miss. LEXIS 2011 (Miss. 1979).

Where the original lessee had assigned its leasehold interest to another, who in turn rented to a person who incurred a debt upon which a mechanic’s lien was attempted to be enforced, the original lessee was not a necessary and indispensable party to the suit. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

The owner of the leasehold interest upon which a mechanic’s lien is sought to be enforced is a necessary party to the suit. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

Where the claimant commenced his suit in circuit court within twelve months after the money became due and payable to enforce a mechanic’s and a materialman’s lien and recovered a judgment establishing the lien, and then started a second suit after twelve months had expired for the purpose of having such judgment declared a prior lien to lien claimed under a deed of trust, the circuit court judgment on which relief was sought in the chancery court on the second suit, was not barred by the limitation until seven years after its rendition. Vinson v. Cooley, 54 So. 2d 750 (Miss. 1951).

When in a suit for a mechanic’s and materialman’s lien on heating equipment installed on hotel premises the contract was not recorded, and no notice of lis pendens was given nor writ of seizure of the property issued, and the property was claimed by the grantee of the realty from a purchaser at foreclosure of a prior deed of trust as a purchaser for value without notice of the unpaid lien, the burden was on such grantee to prove that he was a purchaser for value without notice, and in the absence of such proof, the lien claimant was entitled to recover. Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335, 1940 Miss. LEXIS 50 (Miss. 1940).

There is no requirement that a suit to enforce a materialman’s lien as against personal property shall be filed within twelve months next after the time when the money becomes due as is necessary when the suit affects real property as such. Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335, 1940 Miss. LEXIS 50 (Miss. 1940).

Plaintiff may not be compelled to elect on which count he will stand in proceeding to enforce mechanic’s lien, where count for personal judgment is joined with count on lien. Williams & Williams v. Warren, 134 Miss. 899, 99 So. 266, 1924 Miss. LEXIS 297 (Miss. 1924).

Petition to enforce lien is not amendable 12 months after cause of action arose. Dodds v. Cavett, 133 Miss. 470, 97 So. 813, 1923 Miss. LEXIS 159 (Miss. 1923).

9. Judgment.

Where the contract for the sale of a gas heating and cooking plant provided that the equipment should remain the property of the seller as security for its payment and that it should remain personal property, the seller waived whatever lien it might otherwise have had on the lot and buildings in which the equipment was installed. Mississippi Butane Gas System Co. v. Glisson, 194 Miss. 457, 10 So. 2d 358, 1942 Miss. LEXIS 164 (Miss. 1942).

Interest on sums due laborers and materialmen by contractor follows as a necessary incident thereto, though bond guaranteeing performance of the contract does not expressly provide therefor. United States Fidelity & Guaranty Co. v. Parsons, 154 Miss. 587, 122 So. 544, 1929 Miss. LEXIS 156 (Miss. 1929).

If the petition for the enforcement of a materialman’s lien, under this section [Code 1942, § 356], fails to state a cause of action against the owner, the judgment against him is void and its execution may be enjoined. Smith v. Frank Gardener Hardware & Supply Co., 83 Miss. 654, 36 So. 9, 1903 Miss. LEXIS 87 (Miss. 1904).

The statutory lien of mechanics and materialmen given under this section [Code 1942, § 356] is not waived by merely taking additional security not inconsistent therewith. Parberry v. N. B. Johnson & Co., 51 Miss. 291, 1875 Miss. LEXIS 44 (Miss. 1875); Smith & Vaile Co. v. Butts, 72 Miss. 269, 16 So. 242, 1894 Miss. LEXIS 70 (Miss. 1894).

10. Assignment of lien.

The lien given by the statute is assignable independently of statutory authorization. Kerr v. Moore, 54 Miss. 286, 1876 Miss. LEXIS 32 (Miss. 1876).

11. Waiver of lien.

Materialman’s lien is not waived by taking of notes to secure amount of indebtedness. Bullock v. Hans, 208 Miss. 41, 43 So. 2d 670, 1949 Miss. LEXIS 405 (Miss. 1949).

II. Priority of Liens.

12. Generally.

When a construction money lender foreclosed its deed of trust on a shopping center and purchased the property at the trustee’s sale, it took title pendente lite, subject to the contingency that laborers’ and materialmen’s liens were valid, where the laborers and materialmen had filed their claims more than six months before the trustee’s sale was advertised, and where the materialmen and laborers brought suit to enforce their liens one day before the sale and filed notice of the suit on the lis pendens record; as between the lender and the landowners, who filed suit to enforce their liens and filed a lis pendens notice two days before the trustee’s sale, the lender took title subject to the outcome of the landowners’ suit and could not defeat their claim by foreclosing its deed of trust. Guaranty Mortg. Co. v. Seitz, 367 So. 2d 438, 1979 Miss. LEXIS 2202 (Miss. 1979).

In an action to determine the priority between a mechanic’s lien and first and second deeds of trust, the mechanic’s lien asserted by a contractor, who had repaired a fixture on the premises, was subordinate to the first deed of trust on the property, where the owner of that deed of trust did not consent in writing to the alteration or repair of the fixture, but had priority over the rights of purchasers of a trustee’s deed which foreclosed a second deed of trust, where the purchasers of that deed bought the property at foreclosure of the second deed with notice of the lien’s existence. Ziller v. Atkins Motel Co., 244 So. 2d 409, 1971 Miss. LEXIS 1334 (Miss. 1971).

Under this section [Code 1942, § 356] a mechanic’s lien is valid without the necessity of reduction to judgment. Geo. H. Jett Drilling Co. v. Tibbits, 230 F. Supp. 58, 1964 U.S. Dist. LEXIS 8462 (W.D. La. 1964).

In suit to enforce materialmen’s lien in which holders of deed of trust claimed priority on ground that at time he took deed of trust no suit had been commenced to enforce materialmen’s lien, no notice of lien had been filed of record and he had no actual notice, issue of actual notice is properly submitted to jury for its determination under proper instructions from court. Bullock v. Hans, 208 Miss. 41, 43 So. 2d 670, 1949 Miss. LEXIS 405 (Miss. 1949).

Bank advancing money to owner secured by deed of trust held entitled to priority over claim of materialman whose lien was not recorded, and who did not bring suit to enforce lien until after recording of deed of trust. Walker v. Macon Creamery Co., 165 Miss. 121, 146 So. 442, 1933 Miss. LEXIS 284 (Miss. 1932).

Mechanic’s lien for new buildings erected superior to prior encumbrance, but not to a subsequent lien without notice. Big Three Lumber Co. v. Curtis, 130 Miss. 74, 93 So. 487, 1922 Miss. LEXIS 188 (Miss. 1922).

Where a mechanic repairs property on which there exists a prior lien which he knows exists, his lien for repairs will be subject to the prior lien, unless the facts show a waiver by the prior lienholder, or an implied contract to subordinate his lien to that of the mechanic. Hollis & Ray v. Isbell, 124 Miss. 799, 87 So. 273, 1921 Miss. LEXIS 180 (Miss. 1921).

Where a suit, begun in due time, to enforce a lien on machinery under this section [Code 1942, § 356], is dismissed on demurrer, and plaintiff appeals and obtains a reversal, one who purchases the property under a trust deed given by the defendant takes it subject to the lien, although he buys in good faith and without notice that the appeal was taken. Smith & Vaile Co. v. Burns, 72 Miss. 966, 18 So. 483, 1895 Miss. LEXIS 67 (Miss. 1895).

13. Federal tax liens.

A mechanic’s lien is not entitled to priority over a lien for federal income taxes. Geo. H. Jett Drilling Co. v. Tibbits, 230 F. Supp. 58, 1964 U.S. Dist. LEXIS 8462 (W.D. La. 1964).

14. Mortgages.

A lender advancing funds for a construction loan was entitled to a superior lien over mechanics’ and materialmen’s liens only to the extent that the lender used reasonable diligence in disbursing the construction loan and only in the amount that went into the construction of the project. Guaranty Mortg. Co. v. Seitz, 367 So. 2d 438, 1979 Miss. LEXIS 2202 (Miss. 1979).

A lender advancing construction funds and using reasonable diligence to see that these funds are actually used in payment for materials or other cost of construction has preference over materialmen and laborers who had failed to give notice of their claims to the mortgagee. Wortman & Mann, Inc. v. Frierson Bldg. Supply Co., 184 So. 2d 857, 1966 Miss. LEXIS 1484 (Miss. 1966).

A construction mortgagee has preference over materialmen and laborers only to the extent that its funds actually go into the construction. Southern Life Ins. Co. v. Pollard Appliance Co., 247 Miss. 211, 150 So. 2d 416, 1963 Miss. LEXIS 294 (Miss. 1963).

Mortgagee who makes loan to mortgagor to enable him to purchase land and materials and lumber for the construction of houses thereon and turns money over to mortgagor as he asks for it, knowing that houses are being constructed, but doing nothing to see that such construction is being paid for, has preference over materialmen only to extent that its funds actually go into the construction, when mortgagor fails to use all money advanced by mortgagee for payment of those furnishing materials; such mortgagee should advance proceeds with reasonable diligence in order that holders of statutory liens may not be unjustly defeated in their claims. First Nat'l Bank v. Virden, 208 Miss. 679, 45 So. 2d 268, 1950 Miss. LEXIS 285 (Miss. 1950).

Assignee of mortgagee held entitled to priority over judgment lien of materialman filing petition against mortgagor to enforce lien against house prior to execution of trust deed, where materialman failed to file lis pendens notice and there was no written contract on file, in absence of knowledge by mortgagee of proceedings. Swift & Co. v. Everett, 171 Miss. 410, 157 So. 476, 1934 Miss. LEXIS 241 (Miss. 1934).

Trust deed to secure future advances held prior to mechanics’ liens arising during course of construction of building only to extent money secured was used in paying for construction. Weiss, Dreyfous & Seiferth, Inc. v. Natchez Inv. Co., 166 Miss. 253, 140 So. 736, 1932 Miss. LEXIS 302 (Miss. 1932).

15. Liens encompassing equipment or machinery.

The seller of a gas heating and cooking plant, installed in a house under a contract whereby title was to remain in the seller as security for payment and was to remain personal property, could not impress a lien against the house and lot, as against the beneficial owner of a prior trust deed on the house, where it was shown that the seller had actual and constructive notice of such deed, and it was not shown that the installation of the plant was necessary to the enjoyment, use or preservation of the house. Mississippi Butane Gas System Co. v. Glisson, 194 Miss. 457, 10 So. 2d 358, 1942 Miss. LEXIS 164 (Miss. 1942).

In materialman’s lien case, evidence established that motors and other machinery installed in cottonseed warehouse became part of building and freehold, and, therefore, subject to recorded trust deed, and where mortgagee purchased property at foreclosure sale, he had paramount lien which ripened into ownership as against materialmen’s lien claimant, mortgagor, and his purchaser. M. L. Virden Lumber Co. v. Sherrod, 167 Miss. 297, 139 So. 813, 1932 Miss. LEXIS 192 (Miss. 1933).

Deed of trust covering land and ginning machinery and “equipment” did not include seed house constructed on leased railroad right of way so as to take precedence over lien of materialman who furnished materials for construction of such seed house without notice of any claim thereto under the deed of trust. Y. D. Lumber Co. v. Refuge Cotton Oil Co., 153 Miss. 302, 120 So. 447, 1929 Miss. LEXIS 11 (Miss. 1929).

16. Waiver or estoppel.

When it is shown that the petitioner has a laborer’s lien or materialman’s lien upon property constructed or repaired, those who claim to have superior liens as purchasers or encumbrances for a valuable consideration without notice must specifically and affirmatively plead their lien; the burden of proof is upon one who claims to be an encumbrancer for value without notice, and he must show facts which will bring such claim within the exceptions set out in Code 1942, § 356. Enterprise Plumbing Co. v. Bailey Mortg. Co., 209 So. 2d 825, 1968 Miss. LEXIS 1474 (Miss. 1968).

17. Pleadings; burden of proof.

Mortgagee purchasing at foreclosure sale was bound by waiver in pleadings in favor of materialman’s lien claimant of paramount position, if any. M. L. Virden Lumber Co. v. Sherrod, 167 Miss. 297, 139 So. 813, 1932 Miss. LEXIS 192 (Miss. 1933).

Materialman held estopped by silence from claiming priority of lien for extras over lien of mortgage of bank lending money with understanding it would have first lien. Planters' Lumber Co. v. Griffin Chapel M.E. Church, 157 Miss. 714, 128 So. 76 (1930).

Where a mechanic repairs property on which there exists a prior lien which he knows exists, his lien for repairs will be subject to the prior lien, unless the facts show a waiver by the prior lienholder, or an implied contract to subordinate his lien to that of the mechanic. Hollis & Ray v. Isbell, 124 Miss. 799, 87 So. 273, 1921 Miss. LEXIS 180 (Miss. 1921).

§ 85-7-132. Lien to enforce violations related to oil and gas production.

Every building, well or structure of any kind, and any fixed machinery, gearing or other fixture that may or may not be used or connected therewith, and all fixtures and equipment in the producing unit assigned such well by the Oil and Gas Board shall be liable for any penalty, civil fine or other expense arising from the violation of any statute of this state with respect to the conservation of oil and gas, or any provision of Sections 53-1-1 through 53-1-47 and Sections 53-3-1 through 53-3-21, or any rule, regulation or order made by the board thereunder. The Oil and Gas Board may use the provisions of this chapter to enforce any such lien. The Oil and Gas Board shall perfect such lien in the county or counties where the property or equipment involved in the violation is located. Such lien shall take effect as to purchasers or encumbrancers for a valuable consideration without notice thereof only from the time of filing notice of such lien as provided by Section 85-7-133.

HISTORY: Laws, 1997, ch. 482, § 1, eff from and after passage (approved March 27, 1997).

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gas and Oil § 124 et seq.

§ 85-7-133. Chancery clerk to keep record of liens.

Each of the several chancery clerks of this state shall provide in his office, as a part of the land records of his county, a record entitled “Notice of Liens” wherein notices under Section 85-7-131 shall be filed and recorded, and the liens shall not take effect until some notation of the lien is filed and recorded in the record showing a description of the property involved, the name of the lienor or lienors, the date of filing, if and where suit is filed, and if and where contract is filed or recorded.

HISTORY: Codes, Hutchinson’s 1848, ch. 45, art. 6 (1); 1857, ch. 39, art. 1; 1871, § 1603; 1880, § 1378; 1892, § 2698; 1906, § 3058; Hemingway’s 1917, § 2418; 1930, § 2258; 1942, § 356; Laws, 1926, ch. 150; Laws, 1928, ch. 137; Laws, 1962, ch. 488, §§ 1, 2; Laws, 1964, ch. 291; Laws, 1994, ch. 521, § 39; Laws, 2014, ch. 487, § 19, eff from and after passage (approved Apr. 11, 2014).

Amendment Notes —

The 2014 amendment substituted “Notice of Liens” for “Notice of Construction Liens” and “the liens shall not take effect until some notation of the lien is filed and recorded in the record” for “such liens, as provided hereunder, shall not take effect unless and until some notation thereof shall be filed and recorded in said record.”

Cross References —

Duties of clerk of chancery court to keep records, see §9-5-137.

RESEARCH REFERENCES

ALR.

Landlord’s liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

JUDICIAL DECISIONS

1. In general.

In an action by the purchaser of a house for damages against the builder, the trial court erred in sustaining the builder’s demurrer to one count of the complaint charging it with falsely filing a materialmen’s lien in 1977 against the property without providing notice to the purchaser as required by §85-7-197 [repealed] where the claim was not barred by the one-year statute of limitations set out in §85-7-201 [repealed] since the suit had been filed in 1979 within a month after the purchaser first became aware of the lien. The fact that the notice of lien was listed in the “Notice of Construction Liens” book established by §85-7-133, rather than on the lis pendens docket established by by §85-7-197 [repealed], did not excuse the builder from the notice requirement of the latter statute. Hicks v. Greenville Lumber Co., 387 So. 2d 94, 1980 Miss. LEXIS 2056 (Miss. 1980).

§§ 85-7-135 through 85-7-139. Repealed.

Repealed by Laws, 2014, ch. 487, § 24, effective from and after passage April 11, 2014.

§85-7-135. [Codes, 1857, ch. 39, art. 2; 1871, § 1604; 1880, § 1379; 1892, § 2699; 1906, § 3059; Hemingway’s 1917, § 2419; 1930, § 2259; 1942, § 357; Laws, 1926, ch. 150; Laws, 2010, ch. 372, § 2, eff from and after July 1, 2010.]

§85-7-137. [Codes, 1857, ch. 39, art. 3; 1871, § 1605; 1880, § 1380; 1892, § 2700; 1906, § 3060; Hemingway’s 1917, § 2420; 1930, § 2260; 1942, § 358.]

§85-7-139. [Codes, 1857, ch. 39, art. 5; 1871, § 1607; 1880, § 1382; 1892, § 2701; 1906, § 3061; Hemingway’s 1917, § 2421; 1930, § 2261; 1942, § 359.]

Editor’s Notes —

Former §85-7-135 provided that liens under §85-7-131 (as it appeared prior to the 2014 amendment) exist only in favor of the contractor or an employee.

Former §85-7-137 provided a lien for construction, alteration or repair of any house or building that was done at the instance of a person not the owner of the property attached only to the house or building and the estate of the person who is not the owner of the property. For present similar provisions, see §85-7-411.

Former §85-7-139 provided that a written contract for the construction or repair of a house or building could be recorded.

Amendment Notes —

The 2010 amendment inserted “or furnish such rental or lease of equipment.”

RESEARCH REFERENCES

ALR.

Release or waiver of mechanic’s lien by general contractor as affecting right of subcontractor or materialman. 75 A.L.R.3d 505.

Landlord’s liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

Am. Jur.

53 Am. Jur. 2d, Mechanics’ Liens §§ 65 et seq.

CJS.

56 C.J.S., Mechanics’ Liens §§ 72 et seq.

JUDICIAL DECISIONS

1. In general.

Construction liens placed by a mortgagor on his property after the property had been foreclosed were invalid under Miss. Code Ann. §§85-7-131 and85-7-135 [repealed] because any repairs made by the mortgagor were made without authorization or knowledge of the purchaser at foreclosure. Pepper v. Homesales, Inc., 2009 U.S. Dist. LEXIS 16692 (S.D. Miss. Mar. 3, 2009).

A lumber contractor who made home improvements with the owners’ knowledge and consent but without their written permission was entitled to a lien to cover the cost of improvements for which the price had not been paid only to the extent that the improvements could be removed without damaging the owners’ interest in the house where an oral construction contract was negotiated with the daughter of the owners who, although she lived in the house and made payments to her parents equivalent to mortgage payments, was neither the beneficiary of a resulting trust in the house nor the vendee of an enforceable contract of sale, and thus, had no interest in the house to which the lien could attach. Brown v. Gravlee Lumber Co., 341 So. 2d 907, 1977 Miss. LEXIS 2282 (Miss. 1977).

Where the lessor if not expressly, at least impliedly, authorized the lessee to repair the existing building and to construct a new one and therefore make a contract for that purpose with the lumber company, the lumber company acquired a lien on the building for such repair and construction and under this section [Code 1942, § 357] such lien extends to and covers the entire lot on which the buildings stand and the entire curtilage thereto belonging. Burwell v. Planters Lumber Co., 220 Miss. 79, 70 So. 2d 71, 1954 Miss. LEXIS 411 (Miss. 1954).

Where bank which owned golf course agreed to lease it in consideration of lessee’s deposit of money with bank which money was to be withdrawn by lessee in payment of repairs, and subsequently on lessee’s failure to deposit money bank agreed to accept repairs in lieu of money, laborers and materialmen who contracted with lessee to make repairs and improvements held not entitled to recover from bank for such repairs, where there was no obligation on part of bank express or implied to pay claims. Wenger v. First Nat'l Bank, 174 Miss. 311, 164 So. 229, 1935 Miss. LEXIS 71 (Miss. 1935).

Laborers under the contractor have no lien and cannot impose on the owner any higher duty or further payment than he by his contract has imposed on himself. Herrin v. Warren & Mobley, 61 Miss. 509, 1894 Miss. LEXIS 60 (Miss. 1883); Wenger v. First Nat'l Bank, 174 Miss. 311, 164 So. 229, 1935 Miss. LEXIS 71 (Miss. 1935).

§ 85-7-141. Commencement of suit to enforce lien.

Any person entitled to and desiring to have the benefit of a lien under Section 85-7-131 shall commence his suit in the circuit or county court of the county in which the property or some part thereof is situated, if the principal of his demand exceeds Two Hundred Dollars ($200.00), within twelve (12) months next after the time when the money due and claimed by the suit became due and payable following the day on which the last of the labor was performed or material or rental or lease equipment was supplied by the person bringing the action, and not after; and the suit shall be commenced by petition, describing with reasonable certainty the property upon which the lien is averred to exist, and setting out the nature of the contract and indebtedness, and the amount thereof; and the plaintiff shall file therewith in all cases, except where the whole work or materials, or both, were furnished in pursuance of a written contract for an aggregate price, a bill of particulars exhibiting the amount and kind of labor performed, and of materials furnished, and the prices at which and times when the same were performed and furnished; and such suits shall be docketed and conducted as other suits in that court, and may be tried at the first term.

HISTORY: Codes, Hutchinson’s 1848, ch. 45, art. 7 (3); 1857, ch. 39, art. 6; 1871, § 1609; 1880, § 1384; 1892, § 2702; 1906, § 3062; Hemingway’s 1917, § 2422; 1930, § 2262; 1942, § 360; Laws, 1904, ch. 152; Laws, 2011, ch. 457, § 1; Laws, 2014, ch. 487, § 20, eff from and after passage (approved Apr. 11, 2014).

Amendment Notes —

The 2011 amendment inserted “or county” following “shall commence his suit in the circuit”; and inserted “following the day on which the last of the labor was performed . . . . supplied by the person bringing the action.

The 2014 amendment substituted “a” for “such” and inserted “under Section 85-7-131” preceding “shall commence his suit” near the beginning; and substituted “that” for “said” near the end.

Cross References —

Replevin, attachment, and lien proceedings before justices of the peace, see §11-9-135.

Right of action on bond, see §85-7-187.

Landlord’s lien, see §§89-7-23 et seq.

Seizure of property about to be removed by guardian, see §93-13-65.

RESEARCH REFERENCES

ALR.

Who is the “owner” within mechanic’s lien statute requiring notice of claim. 76 A.L.R.3d 605.

Am. Jur.

51 Am. Jur. 2d, Liens §§ 83 et seq.

53 Am. Jur. 2d, Mechanics’ Liens §§ 333 et seq.

17 Am. Jur. Pl & Pr Forms (Rev), Mechanics’ Liens, Forms 101 et seq. (enforcement of lien).

CJS.

53 C.J.S., Liens §§ 32 et seq.

56 C.J.S., Mechanics’ Liens §§ 296 et seq.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

3. Actions in general.

4. Pleadings.

5. —Amendment.

6. Judgment.

7. Limitations.

1. Validity.

The statute is constitutional. Richardson v. Warwick, 8 Miss. 131, 1843 Miss. LEXIS 67 (Miss. 1843).

2. Construction and application.

That the circuit court is the proper situs for suits to enforce a lien does not mean that a chancellor has no jurisdiction to restrain a private person’s efforts to hold himself out as possessing such a lien. Cummings v. Davis, 751 So. 2d 1055, 1999 Miss. App. LEXIS 374 (Miss. Ct. App. 1999).

Lien arising automatically under Mississippi construction statute was statutory lien, not judicial lien subject to avoidance as impairing Chapter 7 debtors’ homestead exemption, though creditor could not enforce lien without filing action, and creditor filed enforcement action and obtained judgment prepetition; judgment did not transform statutory lien into judgment lien. In re Wiltcher, 204 B.R. 488, 1996 Bankr. LEXIS 1747 (Bankr. S.D. Miss. 1996).

In view of the provisions of Code 1942, § 360, actions brought in the chancery court to enforce laborers’ and materialmen’s liens were properly transferred by the chancellor to the circuit court, and an interlocutory appeal from the order of transfer should not have been granted. West v. Mechanical Services, Inc., 216 So. 2d 174, 1968 Miss. LEXIS 1223 (Miss. 1968).

In a suit under oral contract to recover balance for construction of a porch, there was proof that contractor did not substantially perform the contract, therefore the contractor could not recover on the contract or on quantum meruit, and it was not necessary to file a counterclaim or recoupment. Jackson v. Caffey, 223 Miss. 368, 78 So. 2d 361, 1955 Miss. LEXIS 389 (Miss. 1955).

In suit on contractor’s bond, laborers’ and materialmen’s rights were not measured by provisions of mechanics’ lien statute. Continental Casualty Co. v. Crook, 157 Miss. 518, 128 So. 574, 1930 Miss. LEXIS 329 (Miss. 1930).

Contract between materialmen and owner need not be in writing to impress lien on building into which material went. Delta Lumber Co. v. Wall, 119 Miss. 350, 80 So. 782, 1919 Miss. LEXIS 9 (Miss. 1919).

3. Actions in general.

Motion to remand action to state court was denied, where the defendant railway company had removed the plaintiff construction company’s action based on diversity jurisdiction; the construction company’s argument that Miss. Code Ann. §85-7-141 restricted federal diversity jurisdiction over cases that involved the enforcement of construction liens was without merit because states had no power to enlarge or restrict federal jurisdiction. Atlas Railroad Constr. Co. v. Columus & Greenville Railway Co., 190 F. Supp. 2d 908, 2002 U.S. Dist. LEXIS 9288 (N.D. Miss. 2002).

The suit is not commenced until the petition is filed, though a summons is issued. Christian v. O'Neal, 46 Miss. 669, 1872 Miss. LEXIS 36 (Miss. 1872).

4. Pleadings.

A petition fails to show any cause of action whatever against the owner if it contains no averment of his personal liability to the plaintiff or that at the date he was given notice under the section providing therefor, of plaintiff having furnished materials for use in the building which had not been paid for, he was indebted to the contractor. Smith v. Frank Gardener Hardware & Supply Co., 83 Miss. 654, 36 So. 9, 1903 Miss. LEXIS 87 (Miss. 1904).

When a bill of particulars taken in connection with the statements of the petition give as full information of the petitioner’s claim as if a specific statement of everything were fully set out in detail, it is sufficient. McLaughlin v. Shaughnessey, 42 Miss. 520, 1869 Miss. LEXIS 27 (Miss. 1868).

5. —Amendment.

A suit to enforce the lien can be amended so as to change it to a suit for debt. Duff v. Snider, 54 Miss. 245, 1876 Miss. LEXIS 26 (Miss. 1876); Noble v. Terrell, 64 Miss. 830, 2 So. 14, 1887 Miss. LEXIS 113 (Miss. 1887).

A suit to enforce the lien may be amended after twelve months from the time the debt became due, so as to set forth more precisely the property covered by the lien; but amendment of suit for debt to suit to enforce lien cannot be done after twelve months from the time the debt became due, as the suit for the debt does not stop the running of the statute against the lien. Dinkins v. Bowers, 49 Miss. 219, 1873 Miss. LEXIS 107 (Miss. 1873).

A suit for the debt may be amended so as to change it to one to enforce the lien. Weathersby v. Sinclair, 43 Miss. 189, 1870 Miss. LEXIS 24 (Miss. 1870).

6. Judgment.

Where the petition wholly fails to state any cause of action against the owner a judgment against him is void and its execution may be enjoined. Smith v. Frank Gardener Hardware & Supply Co., 83 Miss. 654, 36 So. 9, 1903 Miss. LEXIS 87 (Miss. 1904).

Adjudications in a judgment by default in a suit to enforce a mechanic’s lien must be limited to matters of right, averred in the petition, and cannot be extended by its prayer. Reid v. Gregory, 78 Miss. 247, 28 So. 835, 1900 Miss. LEXIS 102 (Miss. 1900).

7. Limitations.

Dismissal of a suit seeking to enforce a construction lien was proper as: (1) the original complaint (OC) did not name the real party in interest under Miss. R. Civ. P. 17(a), the current owner (CO) of the building; (2) the prior owner had conveyed the property before the OC was filed; (3) the amended complaint (AC) was time-barred as it was not served on the CO until after the Miss. Code Ann. §85-7-141 limitations period expired; (4) due to the lack of timely service under Miss. R. Civ. P. 4(h), the AC did not relate back to the OC’s filing under Miss. R. Civ. P. 15(c); and (5) the contractor did not show good cause for the delayed service. Welch Roofing & Constr., Inc. v. Farina, 99 So.3d 274, 2012 Miss. App. LEXIS 639 (Miss. Ct. App. 2012).

A materialman’s lien established by the circuit court on the property of the defendant would be set aside where the plaintiff’s declaration to establish the lien had been filed in the circuit court approximately 20 months after the indebtedness had become due and payable. Central Grain & Supply Co. v. Jesco, Inc., 410 So. 2d 879, 1982 Miss. LEXIS 1876 (Miss. 1982).

A suit to enforce a materialman’s lien created by §85-7-131 was subject to the statute of limitations provided by §85-7-141. Further, the running of this one-year limitation period was suspended following the commencement of bankruptcy proceedings and did not commence to run again until the property at issue had been formally abandoned by order of the bankruptcy court. Home Bldg. Mart, Inc. v. Parker, 370 So. 2d 916, 1979 Miss. LEXIS 2011 (Miss. 1979).

Where the defendant filed notice of a materialman’s lien but took no other steps to protect its interest until the property owner filed a bill seeking cancellation of the notice more than two years later, its materialman’s lien was barred by the 12-month statute of limitations. King v. Hankins, 209 So. 2d 190, 1968 Miss. LEXIS 1444 (Miss. 1968).

The twelve month statute of limitations on liens under this section [Code 1942, § 360] does not apply to a mechanic’s and materialmen’s lien against principal property. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

Parties to a contract have the right to establish the due date of the obligation and the statute of limitation will not begin to run until such due date. Burwell v. Planters Lumber Co., 220 Miss. 79, 70 So. 2d 71, 1954 Miss. LEXIS 411 (Miss. 1954).

Where the claimant commenced his suit in circuit court within twelve months after the money became due and payable to enforce a mechanic’s and a materialman’s lien and recovered a judgment establishing the lien, and then started a second suit after twelve months had expired for the purpose of having such judgment declared a prior lien to lien claimed under a deed of trust, the circuit court judgment on which relief was sought in the chancery court on the second suit, was not barred by the limitation until seven years after its rendition. Vinson v. Cooley, 54 So. 2d 750 (Miss. 1951).

Contractor’s suit to foreclose a lien upon a house, under contract whereby contractor retained a lien until he had been paid in full, instituted more than one year after the last payment had become due, was not barred on theory that the contract merely granted the contractor a mechanic’s lien which was barred. Pincus v. Collins, 198 Miss. 283, 22 So. 2d 361, 1945 Miss. LEXIS 194 (Miss. 1945).

There is no requirement that a suit to enforce a materialmen’s lien as against personal property shall be filed within twelve months next after the time when the money became due as is necessary when the suit affects real property as such. Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335, 1940 Miss. LEXIS 50 (Miss. 1940).

The holder of a deed of trust on certain personal property and a purchaser of such property from a trustee in bankruptcy, setting up the defense of statute of limitations to the enforcement of a mechanic’s lien claimed as to such property, were bound to prove that the due date of the indebtedness claimed by the mechanic’s lien claimant was such as to cause the mechanic’s lien to be barred by the statute without regard to when the labor was actually done or materials furnished. Billups v. Becker's Welding & Machine Co., 186 Miss. 41, 189 So. 526, 1939 Miss. LEXIS 219 (Miss. 1939).

Filing amended bill within twelve months after due date of note for material tolls statute requiring proceeding for enforcement within twelve months. Eagle Lumber & Supply Co. v. Peyton, 145 Miss. 482, 111 So. 141, 1927 Miss. LEXIS 144 (Miss. 1927).

Where there has been a continuous delivery of material, and the time of payment is not fixed by contract, the statute begins to run against the lien from the delivery of the last lot of material. Ehlers v. Elder, 51 Miss. 495, 1875 Miss. LEXIS 70 (Miss. 1875); O'Leary v. Burns, 53 Miss. 171, 1876 Miss. LEXIS 51 (Miss. 1876); Billups v. Becker's Welding & Machine Co., 186 Miss. 41, 189 So. 526, 1939 Miss. LEXIS 219 (Miss. 1939).

Unless suit to enforce the lien be brought within the time allowed by the statute, the lien will be lost. Jones v. Alexander, 18 Miss. 627, 1848 Miss. LEXIS 150 (Miss. 1848); Dinkins v. Bowers, 49 Miss. 219, 1873 Miss. LEXIS 107 (Miss. 1873); Ehlers v. Elder, 51 Miss. 495, 1875 Miss. LEXIS 70 (Miss. 1875); O'Leary v. Burns, 53 Miss. 171, 1876 Miss. LEXIS 51 (Miss. 1876).

The time for payment of the debt, as fixed by the contract, cannot be postponed by subsequent agreement so as to extend the lien. Jones v. Alexander, 18 Miss. 627, 1848 Miss. LEXIS 150 (Miss. 1848); Ehlers v. Elder, 51 Miss. 495, 1875 Miss. LEXIS 70 (Miss. 1875).

§ 85-7-143. Parties to the suit.

All persons having an interest in the controversy, and all persons claiming liens on the same property, by virtue of Section 85-7-131, shall be made parties to the suit; and should any necessary or proper party be omitted, he may be brought in by amendment, on his own application or that of any other party interested; and claims of several parties having liens on the same property may be joined in the same action.

HISTORY: Codes, 1857, ch. 39, art 7; 1871, § 1610; 1880, § 1385; 1892, § 2703; 1906, § 3063; Hemingway’s 1917, § 2423; 1930, § 2263; 1942, § 361; Laws, 2014, ch. 487, § 21, eff from and after passage (approved Apr. 11, 2014).

Amendment Notes —

The 2014 amendment substituted “Section 85-7-131” for “this chapter.”

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Liens § 86.

53 Am. Jur. 2d, Mechanics’ Liens §§ 353 et seq.

CJS.

56 C.J.S., Mechanics’ Liens §§ 322 et seq.

JUDICIAL DECISIONS

1. Necessary and proper parties generally.

2. Intervention by interested person.

3. Scope and effect of judgments.

1. Necessary and proper parties generally.

The conditional seller of an automobile is a necessary party to a proceeding to enforce a mechanic’s lien for repairs. Mississippi Motor Finance, Inc. v. Thomas, 246 Miss. 14, 149 So. 2d 20, 1963 Miss. LEXIS 411 (Miss. 1963).

Where the original lessee had assigned its leasehold interest to another, who in turn rented to a person who incurred a debt upon which a mechanic’s lien was attempted to be enforced, the original lessee was not a necessary and indispensable party to the suit. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

The owner of the leasehold interest upon which a mechanic’s lien is sought to be enforced is a necessary party to the suit. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

One claiming to be a bona fide holder of deed of trust against real property is proper party, under this section [Code 1942, § 361], to suit to enforce materialmen’s lien on same property. Bullock v. Hans, 208 Miss. 41, 43 So. 2d 670, 1949 Miss. LEXIS 405 (Miss. 1949).

Where in suit to enforce a mechanic’s lien for labor done on a wrecked automobile, the bill of complaint alleged that credit company claimed some interest in such automobile, and such credit company was served with process by publication and decree pro confesso was taken against such company upon its failure to appear, and on appeal credit company was permitted to file forthcoming bond, appeal could not be defeated on ground that credit company was not a party to the suit. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 694 (Miss. 1943).

Holder of deed of trust was necessary party to proceedings to establish and enforce mechanic’s lien. Parsons v. Foster, 154 Miss. 363, 122 So. 387, 1929 Miss. LEXIS 124 (Miss. 1929).

To a suit to enforce the lien, under the statute, all persons claiming similar liens on the same property must be made parties or their rights will not be affected, whether suits be pending to enforce the liens of such others or not. Buntyn v. Shippers' Compress Co., 63 Miss. 94, 1885 Miss. LEXIS 22 (Miss. 1885).

Both the administrator and heirs are necessary parties to the suit to enforce the lien on the land of the deceased debtor, under the statute. Guerrant v. Dawson, 34 Miss. 149, 1857 Miss. LEXIS 120 (Miss. 1857).

Persons who claim the land adversely to those with whom the mechanic or materialman made his contract, are not proper parties to the suit to enforce the lien, as their interest will not be affected and cannot be adjudicated. Falconer v. Frazier, 15 Miss. 235, 1846 Miss. LEXIS 141 (Miss. 1846); English v. Foote, 16 Miss. 444, 1847 Miss. LEXIS 40 (Miss. 1847); Laud v. Muirhead, 31 Miss. 89, 1856 Miss. LEXIS 36 (Miss. 1856).

2. Intervention by interested person.

Where one, who had made repairs to a truck, intervened in an action by subsequent repairmen against the conditional vendee of the truck to recover for their labor and to impress a lien upon the truck and, the truck having been condemned to be sold to pay for all the repairs, took an assignment of the subsequent repairmen’s lien and their interest in the judgment and then purchased the truck at the sale thereunder, thereby acquiring the vendee’s title, which was the ownership of the truck subject to the lien of the conditional sales contract, the mechanic’s liens were not merged into the judgment, but remained in effect as against the vendor’s assignee, and the assignee was entitled to dispossess the holder of the mechanic’s liens only when it had paid him what the purchaser of the truck owed him, if anything, for the repairs to it. General Motors Acceptance Corp. v. Shoemake, 192 Miss. 446, 6 So. 2d 309, 1942 Miss. LEXIS 32 (Miss. 1942).

3. Scope and effect of judgments.

Materialmen’s lien judgment solely against owner who had theretofore parted with all interest in property was void of any real substance or force. Hervey v. Commercial Bank of Clarksdale, 152 Miss. 894, 120 So. 463, 1929 Miss. LEXIS 230 (Miss. 1929).

§ 85-7-145. Summons of defendants.

In all actions to enforce a lien granted by Section 85-7-131, the defendants shall be summoned, as in other actions at law, to appear and defend the action; and in case any necessary party defendant shall be a nonresident of or absent from the state, or cannot be found, he may be made a party by publication, as in cases of nonresident or absent defendants in chancery, requiring him to appear on a day to be therein named; and in default of appearance, the same proceedings shall be had as if the defendant had been duly summoned and made default.

HISTORY: Codes, 1857, ch. 39, art. 8; 1871, § 1611; 1880, § 1386; 1892, § 2704; 1906, § 3064; Hemingway’s 1917, § 2424; 1930, § 2264; 1942, § 362; Laws, 2014, ch. 487, § 22, eff from and after passage (approved Apr. 11, 2014).

Amendment Notes —

The 2014 amendment added “In all actions to enforce a lien granted by Section 85-7-131” to the beginning and substituted “the” for “such” near the end.

Cross References —

Bonds securing public construction contracts and suits thereon, see §§31-5-51 et seq.

Process in suits instituted to enforce liens, see §85-7-195.

RESEARCH REFERENCES

ALR.

Sufficiency of notice, claim, or statement of mechanic’s lien with respect to nature of work. 27 A.L.R.2d 1169.

Am. Jur.

53 Am. Jur. 2d, Mechanics’ Liens § 368.

JUDICIAL DECISIONS

1. In general.

As regards suits under statute authorizing materialmen and laborers to bring suit on bond of contractor with state within one year after final settlement or abandonment of contract and publication of notice thereof, the parties interested are to be summoned as provided under this section. [Code 1942, § 362]. United States Fidelity & Guaranty Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529, 1936 Miss. LEXIS 31 (Miss. 1936).

This section [Code 1942, § 362] is a general section governing the summoning of parties touching controversies respecting statutory liens. United States Fidelity & Guaranty Co. v. Dedeaux, 168 Miss. 794, 152 So. 274, 1934 Miss. LEXIS 364 (Miss. 1934).

§ 85-7-147. Defenses and counterclaims.

In all actions to enforce a lien granted by Section 85-7-131, the defendants, or any of them, by answer to the petition, may make any defense they may have against the demand of the plaintiff, and also any counterclaim against him touching the subject-matter of the suit. And should any defendant claim to have a lien upon the same property, for materials furnished or labor done thereon, he may present the lien by his answer; and the cause shall be at issue without a replication, and the parties shall be confined at the trial to the cause of action and defense set forth in the pleadings.

HISTORY: Codes, 1857, ch. 39, art. 9; 1871, § 1612; 1880, § 1387; 1892, § 2705; 1906, § 3065; Hemingway’s 1917, § 2425; 1930, § 2265; 1942, § 363; Laws, 2014, ch. 487, § 23, eff from and after passage (approved Apr. 11, 2014).

Amendment Notes —

The 2014 amendment added “In all actions to enforce a lien granted by Section 85-7-131” to the beginning of the first sentence and substituted “lien” for “same” in the middle of the second sentence.

Cross References —

Trial of right of property, see §§11-23-7 et seq.

RESEARCH REFERENCES

ALR.

Claim barred by limitation as subject to setoff, counterclaim, recoupment, cross bill, or cross action. 1 A.L.R.2d 630.

Release or waiver of mechanic’s lien by general contractor as affecting rights of subcontractor or materialman. 75 A.L.R.3d 505.

Am. Jur.

51 Am. Jur. 2d, Liens § 88.

53 Am. Jur. 2d, Mechanics’ Liens §§ 380, 381.

17 Am. Jur. Pl & Pr Forms (Rev) Mechanics’ Liens, Forms 118, 119, 134, 135, 148-150 (answers in proceedings to enforce mechanics’ liens).

JUDICIAL DECISIONS

1. In general.

In proceeding to enforce materialmen’s lien, it is duty of trial court to confine parties to cause of action and defense set forth in pleadings, and supreme court has same duty on appeal. Bullock v. Hans, 208 Miss. 41, 43 So. 2d 670, 1949 Miss. LEXIS 405 (Miss. 1949).

Holder of deed of trust on property, as a necessary party to a suit to establish mechanic’s lien on such property, had the right to defend under this section [Code 1942, § 363] and to counterclaim against plaintiff with respect to subject matter of the suit. Parsons v. Foster, 154 Miss. 363, 122 So. 387, 1929 Miss. LEXIS 124 (Miss. 1929).

Permitting defendant to reopen case and make proof of recoupment not authorized by pleading, was error. Carter v. Collins, 151 Miss. 1, 117 So. 336, 1928 Miss. LEXIS 276 (Miss. 1928).

§§ 85-7-149 and 85-7-151. Repealed.

Repealed by Laws 2014, ch. 487, § 24, effective upon approval April 11, 2014.

§85-7-149. [Codes, 1857, ch. 39, art. 10; 1871, § 1613; 1880, § 1388; 1892, § 2706; 1906, § 3066; Hemingway’s 1917, § 2426; 1930, § 2266; 1942, § 364.]

§85-7-151. [Codes, 1857, ch. 39, art. 11; 1871, § 1614; 1880, § 1389; 1892, § 2707; 1906, § 3067; Hemingway’s 1917, § 2427; 1930, § 2267; 1942, § 365; Laws, 1987, ch. 392, § 1, eff from and after July 1, 1987.]

Editor’s Notes —

Former §85-7-149 related to jury trial for actions to enforce liens and the applicability of rules of evidence and practice.

Former §85-7-151 related to costs and attorneys’ fees.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Liens § 92.

53 Am. Jur. 2d, Mechanics’ Liens §§ 398 et seq.

16 Am. Jur. Pl & Pr Forms (Rev) Liens, Forms 81 et seq. (judgments foreclosing liens).

17 Am. Jur. Pl & Pr Forms (Rev) Mechanics’ Liens, Form 3 (instruction to jury as to necessity for valid contract or consent).

17 Am. Jur. Pl & Pr Forms (Rev) Mechanics’ Liens, Forms 171 et seq. (judgments or decrees).

CJS.

56 C.J.S., Mechanics’ Liens §§ 365 et seq.

JUDICIAL DECISIONS

1. In general.

In an action to enforce a lien for labor and materials furnished in construction of a boardinghouse, the testimony as to the statements of contractor that he ordered materials and was dealing with the claimants because the property owner referred him to them was not objectionable on the ground of hearsay because this testimony was admissible as an independently relevant fact to explain the circumstances under which the claimants furnished materials for which they were claiming. Handshoe v. Daly, 211 Miss. 189, 51 So. 2d 230, 1951 Miss. LEXIS 347 (Miss. 1951).

§ 85-7-153. Execution.

When the judgment shall be against the house, building, structure, or fixture and land, or against the same without the land, or against a railroad, or railroad embankment, a special writ of execution shall issue, to make the amount recovered by sale of the property, which shall be described therein; and when both a general and special judgment shall be given, both writs may be issued, either separately or combined in one, or one may be issued after the return of the other for the whole or the residue, as the case may require.

HISTORY: Codes, 1857, ch. 39, art. 12; 1871, § 1615; 1880, § 1390; 1892, § 2708; 1906, § 3068; Hemingway’s 1917, § 2428; 1930, § 2268; 1942, § 366.

Cross References —

Issuance and return of executions, see §13-3-113.

RESEARCH REFERENCES

Am. Jur.

53 Am. Jur. 2d, Mechanics’ Liens § 421.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 366] bears out the construction of Code 1906, § 3060 (Code 1942, § 358) that if additions and repairs to property owner’s building made at the request of another can be removed without injury to the building, such additions and repairs are subject to the lien of the statute, while if they cannot be so removed, the lien of the statute does not attach. Chears Floor & Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426, 1930 Miss. LEXIS 374 (Miss. 1930).

§ 85-7-155. Sale of house, building, etc., with or without land; procedure; purchaser’s estate in land.

If such special writ of execution be for the sale of a house, building, structure, or fixture and the land, or for the sale of the same without the land, the officer shall levy on, advertise, sell, and convey the same as in other cases of land levied on for debt; and if the sale be of the house, building, structure, or fixtures alone, and the same shall have been erected or constructed and put on the land subsequently to a former encumbrance on the land, the purchaser shall acquire the same free from such former encumbrance, and his purchase shall authorize him to enter and remove such house, building, structure, or fixture from the land with reasonable dispatch; but if the house, building, structure or fixture so sold, or sold with the land, shall have been simply altered or repaired subsequently to a former encumbrance on the land, the purchaser shall acquire the same subject to such encumbrance, unless the encumbrancer consented in writing to the alteration or repairs, in which case the house, building, structure, or fixtures so altered or repaired shall be sold free from such encumbrance, and with the right in the purchaser to enter and remove the same. If the land be sold also, the purchaser shall acquire such estate therein as the owner or builder, as the case may be, had at the time the lien to enforce which the sale is made attached thereon, or at any time afterwards, subject to prior encumbrances; but buildings, structures, or fixtures erected or constructed and put on the land subsequently to prior encumbrances shall pass to the purchaser as if the sale were of such buildings, structures, or fixtures alone.

HISTORY: Codes, 1857, ch. 39, art. 13; 1871, § 1616; 1880, § 1391; 1892, § 2709; 1906, § 3069; Hemingway’s 1917, § 2429; 1930, § 2269; 1942, § 367.

Cross References —

Where sales under execution are made, see §§13-3-161 et seq.

RESEARCH REFERENCES

ALR.

Mechanic’s lien based on contract with vendor pending executory contract for sale of property as affecting purchaser’s interest. 50 A.L.R.3d 944.

Am. Jur.

51 Am. Jur. 2d, Liens § 94.

53 Am. Jur. 2d, Mechanics’ Liens §§ 330 et seq.

16 Am. Jur. Pl & Pr Forms (Rev) Liens, Forms 91 et seq. (sale of property following judgment of foreclosure).

12 Am. Jur. Legal Forms 2d, Liens §§ 165:26, 165:27 (notice of sale to satisfy lien).

CJS.

56 C.J.S., Mechanics’ Liens §§ 405, 406 et seq.

JUDICIAL DECISIONS

1. In general.

2. Right to enter and remove.

1. In general.

In an action to determine the priority between a mechanic’s lien and first and second deeds of trust, the mechanic’s lien asserted by a contractor, who had repaired a fixture on the premises, was subordinate to the first deed of trust on the property, where the owner of that deed of trust did not consent in writing to the alteration or repair of the fixture, but had priority over the rights of purchasers of a trustee’s deed which foreclosed a second deed of trust, where the purchasers of that deed bought the property at foreclosure of the second deed with notice of the lien’s existence. Ziller v. Atkins Motel Co., 244 So. 2d 409, 1971 Miss. LEXIS 1334 (Miss. 1971).

When in a suit for a mechanic’s and materialmen’s lien on heating equipment installed on hotel premises the contract was not recorded, and no notice of lis pendens given or writ of seizure of the property issued, and the property was claimed by the grantee of the realty from a purchaser at foreclosure of a prior deed of trust as a purchaser for value without notice of the unpaid lien, the burden was on such grantee to prove that he was a purchaser for value without notice, and in the absence of such proof, the lien claimant was entitled to recover. Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335, 1940 Miss. LEXIS 50 (Miss. 1940).

If a contract under which material was installed on realty was not recorded, and no lis pendens notice was filed at or after the time suit to enforce the mechanic’s and materialmen’s lien was instituted, and if the material should be considered as real estate fixtures, and if the grantee of the realty from a purchaser at foreclosure at a prior deed of trust was a purchaser for value without actual notice of the lien, such grantee would take the property free of the lien. Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335, 1940 Miss. LEXIS 50 (Miss. 1940).

Under this section [Code 1942, § 367], heating equipment installed on hotel premises and easily detachable therefrom without substantial impairment to the premises, would still be subject to a mechanic’s and materialmen’s lien notwithstanding a prior deed of trust covering the property, but such lien would not include the land. Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335, 1940 Miss. LEXIS 50 (Miss. 1940).

This section [Code 1942, § 367] bears out the construction of Code 1906, § 3060 (Code 1942, § 358) that if additions and repairs to property owner’s building made at the request of another can be removed without injury to the building, such additions and repairs are subject to the lien of the statute, while if they cannot be so removed, the lien of the statute does not attach. Chears Floor & Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426, 1930 Miss. LEXIS 374 (Miss. 1930).

Purchaser under mechanic’s lien gets new building free of prior encumbrances. Big Three Lumber Co. v. Curtis, 130 Miss. 74, 93 So. 487, 1922 Miss. LEXIS 188 (Miss. 1922).

A court of chancery will enforce, and it is the proper forum in which to assert the rights of one who owns buildings situated on land of another. Otley v. Haviland, Clark & Co., 36 Miss. 19, 1858 Miss. LEXIS 77 (Miss. 1858); Watkins v. Owens, 47 Miss. 593, 1873 Miss. LEXIS 7 (Miss. 1873).

2. Right to enter and remove.

The statute contemplates a prompt exercise of the right to enter and remove buildings, and a failure to do so is a waiver of it; What is “reasonable dispatch” is determinable by circumstances, but delay for two years, in the absence of explanation, will be conclusive of a waiver. Priebatsch v. Third Baptist Church, 66 Miss. 345, 6 So. 237, 1899 Miss. LEXIS 105 (Miss. 1889).

A materialman recovering a special judgment, and acquiring title to the house by purchase, but who does not remove it for two years, waives his right to remove it. Priebatsch v. Third Baptist Church, 66 Miss. 345, 6 So. 237, 1899 Miss. LEXIS 105 (Miss. 1889).

§ 85-7-157. Sale of railroad land or buildings; procedure; purchaser’s estate property.

If the special writ of execution be for the sale of a railroad or railroad embankment, the officer shall levy on, advertise, sell, and convey the same as in case of land levied on for debt; and where the property may be in several counties, the officer may sell the same and the right of way, and all depots and other buildings used or connected therewith, as if the same were situated wholly within his county, and the purchaser shall acquire the property free from all prior encumbrances saving the rights of those having concurrent liens under this chapter.

HISTORY: Codes, 1880, § 1391; 1892, § 2710; 1906, § 3070; Hemingway’s 1917, § 2430; 1930, § 2270; 1942, § 368.

Article 11. Suits on Performance Bonds.

§§ 85-7-181 through 85-7-185. Repealed.

Repealed by Laws 2014, ch. 487, § 24, effective upon approval April 11, 2014.

§85-7-181. [Codes, 1880, § 1381; 1892, § 2714; 1906, § 3074; Hemingway’s 1917, § 2434; 1930, § 2274; 1942, § 372; Laws, 1904, ch. 153; Laws, 1918, ch. 128; Laws, 1987, ch. 392, § 2; Laws, 2010, ch. 372, § 3, eff from and after July 1, 2010.]

§85-7-183. [Codes, Hemingway’s 1921 Supp. § 2434a; 1930, § 2275; 1942, § 373; Laws, 1918, ch. 128.]

§85-7-185. [Codes, Hemingway’s 1921 Supp. § 2434b; 1930, § 2276; 1942, § 374; Laws, 1918, ch. 128; Laws, 2010, ch. 372, § 4; Laws, 2012, ch. 357, § 1, eff from and after July 1, 2012.]

Editor’s Notes —

Former §85-7-181 related to subcontractor’s written notice to property owner of amount due subcontractor by contractor and suit.

Former §85-7-183 prohibited assignments of a contract or proceeds by contractors.

Former §85-7-185 related to contractor or subcontractor bonds guaranteeing performance of contract and prompt payment of all persons furnishing labor or materials or equipment under the contract.

§ 85-7-187. Bond; persons with right of action.

If only a performance bond has been provided in accordance with this chapter and if no suit shall be brought by the obligee within six (6) months from the date of the earlier of final completion or actual use or occupancy of the project for its intended purpose, then any person supplying labor or materials to the bond principal on the project shall have a right of action on said bond for his use and benefit against said bond principal and the sureties thereon and to prosecute same to final judgment and execution, subject to the rights and demands of the bond obligee.

HISTORY: Codes, Hemingway’s 1921 Supp. § 2434c; 1930, § 2277; 1942, § 375; Laws, 1918, ch. 128; Laws, 2005, ch. 461, § 1, eff from and after July 1, 2005.

Amendment Notes —

The 2005 amendment rewrote the section to clarify the rights of claimants on performance and payment bonds.

Cross References —

Remedy to enforce lien, see §85-7-31.

How and when lien is enforced, see §85-7-141.

RESEARCH REFERENCES

Law Reviews.

Dunn, Construction Contract Claims and Litigation-Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

1. Validity.

This section [Code 1942, § 375] and companion provisions do not, as applied to a bond which expresses an intention to exclude materialmen and laborers, constitute an arbitrary interference with liberty of contract, with resulting violation of the Fourteenth Amendment. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352, 54 S. Ct. 392, 78 L. Ed. 840, 1934 U.S. LEXIS 508 (U.S. 1934).

2. Construction and application.

Materialmen’s suit against principal road contractor and surety on subcontractor’s bond running to principal contractor, held governed by statute regarding suits on bonds to pay for labor and materials. United States Fidelity & Guaranty Co. v. Dedeaux, 168 Miss. 794, 152 So. 274, 1934 Miss. LEXIS 364 (Miss. 1934).

Statute held applicable to construction of interstate railroad. Gulf States Creosoting Co. v. Southern Finance & Constr. Corp., 166 Miss. 714, 146 So. 860, 1933 Miss. LEXIS 360 (Miss. 1933).

§ 85-7-189. Bond; suit on; commencement.

  1. Suit on a performance claim by an obligee on a bond given in accordance with this chapter shall be commenced as follows:
    1. If the obligee is the owner of the project being constructed, such obligee shall bring suit within one (1) year after the earlier of final completion or actual use or occupancy of the project for its intended purpose; or
    2. If the obligee is other than an owner of the project being constructed, such obligee shall bring suit within one (1) year after such obligee receives final payment with respect to the project.
  2. When suit is instituted on a claim for payment on a payment bond given in accordance with this chapter, it shall be commenced within one (1) year after the day on which the last of the labor was performed or material or rental or lease equipment was supplied by the person bringing the action and not later.
  3. Any suit on a bond given in accordance with this chapter shall be brought in the county in which the contract or some part thereof was performed or in the county in which service of process may be obtained upon either the principal or the surety on such bond.

HISTORY: Codes, Hemingway’s 1921 Supp. § 2434d; 1930, § 2278; 1942, § 376; Laws, 1918, ch. 128; Laws, 1994, ch. 626, § 5; Laws, 2005, ch. 461, § 2; Laws, 2010, ch. 372, § 5, eff from and after July 1, 2010.

Amendment Notes —

The 2005 amendment rewrote the section.

The 2010 amendment inserted “or rental or lease equipment” in (2).

RESEARCH REFERENCES

ALR.

Amount for which mechanic’s lien may be obtained where contract has been terminated or abandoned by consent of parties or without fault on contractor’s part. 51 A.L.R.2d 1009.

Validity of contractual time period, shorter than statute of limitations, for bringing action. 6 A.L.R.3d 1197.

Law Reviews.

Dunn, Construction Contract Claims and Litigation-Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

1. Validity.

This section [Code 1942, § 376] and companion provisions do not, as applied to a bond which expresses an intention to exclude materialmen and laborers, constitute an arbitrary interference with liberty of contract, with resulting violation of the Fourteenth Amendment. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352, 54 S. Ct. 392, 78 L. Ed. 840, 1934 U.S. LEXIS 508 (U.S. 1934).

2. Construction and application.

The statute’s reference to owners as part of the category of “any such persons” means owners who have acted as laborers or materialmen, i.e., owners who have supplied materials or labor to the project. Cooper Indus. v. Tarmac Roofing Sys., 276 F.3d 704, 2002 U.S. App. LEXIS 173 (5th Cir. Miss. 2002).

This section was applicable in a federal action on a contract bond to which the Miller Act was inapplicable, there having been made applicable to the bond by the regulation requiring it no particular statute of limitations and the court having consequently looked to the state statute of limitations applicable to actions of a similar nature. United States on behalf of Mississippi Road Supply Co. v. H. R. Morgan, Inc., 542 F.2d 262, 1976 U.S. App. LEXIS 6248 (5th Cir. Miss. 1976), cert. denied, 434 U.S. 828, 98 S. Ct. 106, 54 L. Ed. 2d 86, 1977 U.S. LEXIS 2882 (U.S. 1977), overruled in part, United States use of Carter Equipment Co. v. H. R. Morgan, Inc., 554 F.2d 164, 1977 U.S. App. LEXIS 12903 (5th Cir. Miss. 1977).

Code 1942, § 376, which applies to contractor’s performance bonds, has no application to a fidelity bond or fidelity insurance. Latham v. United States Fidelity & Guaranty Co., 267 So. 2d 895, 1972 Miss. LEXIS 1431 (Miss. 1972).

The one-year statute of limitations provided for in this section [Code 1942, § 376] does not begin to run until there has been publication of notice of settlement or abandonment of the contract. Transamerica Ins. Co. v. Paine Supply Co., 194 So. 2d 490, 1967 Miss. LEXIS 1409 (Miss. 1967).

The publication of notice required by this section [Code 1942, § 376] applies both where the obligee makes final settlement and where it has determined that the contract has been abandoned. Transamerica Ins. Co. v. Paine Supply Co., 194 So. 2d 490, 1967 Miss. LEXIS 1409 (Miss. 1967).

The publication required by this section [Code 1942, § 376] cannot be waived by custom, nor, in the case of a private contract, is publication of notice contrary to public policy. Transamerica Ins. Co. v. Paine Supply Co., 194 So. 2d 490, 1967 Miss. LEXIS 1409 (Miss. 1967).

There is no difference in the meaning of this section [Code 1942, § 376] and that of Code 1942, § 9016. Transamerica Ins. Co. v. Paine Supply Co., 194 So. 2d 490, 1967 Miss. LEXIS 1409 (Miss. 1967).

Lessors of equipment are not within the coverage provided by the statute, even where the contractor has agreed to furnish “all labor, material and equipment, service and supplies necessary to complete the job and to furnish a suitable performance bond.” Great American Ins. Co. v. Busby, 247 Miss. 39, 150 So. 2d 131, 1963 Miss. LEXIS 280 (Miss. 1963).

Materialmen’s suit against principal road contractor and surety on subcontractor’s bond running to principal contractor, held governed by statute regarding suits on bonds to pay for labor and materials. United States Fidelity & Guaranty Co. v. Dedeaux, 168 Miss. 794, 152 So. 274, 1934 Miss. LEXIS 364 (Miss. 1934).

State statutes providing for lien in favor of subcontractors, laborers, and materialmen are applicable to construction of interstate railroad, and were not suspended by federal law. Gulf States Creosoting Co. v. Southern Finance & Constr. Corp., 166 Miss. 714, 146 So. 860, 1933 Miss. LEXIS 360 (Miss. 1933).

In suit against contractor and surety, intervention based on materialman’s claim may be allowed any time within one year after final settlement of contract. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 160 Miss. 504, 135 So. 349, 1931 Miss. LEXIS 228 (Miss. 1931).

§ 85-7-191. Bond; suit on; only one action permitted; intervention.

If only a performance bond is given in accordance with this chapter and if suit is instituted on said performance bond only one (1) action shall be brought for performance and payment claims and any person entitled to sue may upon application intervene and be made a party to said suit and such intervention must occur within the time limited for such person to bring an original action; provided, however, if a separate payment bond is given then only one (1) separate action for payment claims shall likewise be brought on the payment bond and intervention shall be allowed in accordance with this statute.

HISTORY: Codes, Hemingway’s 1921 Supp. § 2434e; 1930, § 2279; 1942, § 377; Laws, 1918, ch. 128; Laws, 2005, ch. 461, § 3, eff from and after July 1, 2005.

Amendment Notes —

The 2005 amendment rewrote the section.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

1. Validity.

Provision of private work bond statute (§85-7-191) establishing that only one cause of action is permitted against surety’s bond is inapplicable to party who has not been given constitutionally adequate notice of suit. American Fidelity Fire Ins. Co. v. Athens Stove Works, Inc., 481 So. 2d 292, 1985 Miss. LEXIS 2444 (Miss. 1985).

This section [Code 1942, § 377] and companion provisions do not, as applied to a bond which expresses an intention to exclude materialmen and laborers, constitute an arbitrary interference with liberty of contract, with resulting violation of the Fourteenth Amendment. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352, 54 S. Ct. 392, 78 L. Ed. 840, 1934 U.S. LEXIS 508 (U.S. 1934).

2. Construction and application.

One-action-only rule is affirmative defense which may be asserted by party wishing to take advantage of it; when defense is sustained, it is because defense in nature of plea in bar is held good, not because court lacks subject matter jurisdiction over second suit. American Fidelity Fire Ins. Co. v. Athens Stove Works, Inc., 481 So. 2d 292, 1985 Miss. LEXIS 2444 (Miss. 1985).

Materialmen’s suit against principal road contractor and surety on subcontractor’s bond held dismissible where former suit had been filed in another county on same bond against same surety by materialmen furnishing materials to subcontractor on same subcontract. United States Fidelity & Guaranty Co. v. Dedeaux, 168 Miss. 794, 152 So. 274, 1934 Miss. LEXIS 364 (Miss. 1934).

This section [Code 1942, § 377] and companion sections providing for lien in favor of subcontractors, laborers, and materialmen, are applicable to the construction of an interstate railroad, and were not suspended by federal law. Gulf States Creosoting Co. v. Southern Finance & Constr. Corp., 166 Miss. 714, 146 So. 860, 1933 Miss. LEXIS 360 (Miss. 1933).

In suit against contractor and surety permitting intervention and filing of answer and cross-bill after cause had been submitted on merits was proper, in absence of prejudice. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 160 Miss. 504, 135 So. 349, 1931 Miss. LEXIS 228 (Miss. 1931).

In suit against contractor and surety, intervention based on materialman’s claim may be allowed any time within one year after final settlement of contract. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 160 Miss. 504, 135 So. 349, 1931 Miss. LEXIS 228 (Miss. 1931).

§ 85-7-193. Bond: judgment; pro rata recovery where funds insufficient.

If only a performance bond is given in accordance with this chapter and the recovery on the performance bond should be inadequate to pay the full amount found due including amounts due the obligee, judgment shall be given after the performance bond obligee is fully satisfied for all its claims, demands, rights and damages to each person, including reasonable attorney’s fees in an amount to be set by the judge, pro rata of the amount of the recovery. The surety on said performance bond may pay into court for distribution the full amount of its liability, less any amount which may have been paid to the performance bond obligee by reason of the execution of said bond, and upon so doing the surety will be relieved from further liability.

HISTORY: Codes, Hemingway’s 1921 Supp. § 2434f; 1930, § 2280; 1942, § 378; Laws, 1918, ch. 128; Laws, 1987, ch. 392, § 3; Laws, 2005, ch. 461, § 4, eff from and after July 1, 2005.

Amendment Notes —

The 2005 amendment rewrote the section.

RESEARCH REFERENCES

ALR.

Amount of attorneys’ compensation in absence of contract or statute fixing amount. 57 A.L.R.3d 475.

Priority between attorney’s lien for fees against a judgment and lien of creditor against same judgment. 34 A.L.R.4th 665.

Attorney’s assertion of retaining lien as violation of ethical code or rules governing professional conduct. 69 A.L.R.4th 974.

Attorney’s retaining lien: what items of client’s property or funds are not subject to lien. 70 A.L.R.4th 827.

Law Reviews.

Dunn, Construction Contract Claims and Litigation-Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

1. Validity.

This section [Code 1942, § 378] and companion provisions do not, as applied to a bond which expresses an intention to exclude materialmen and laborers, constitute an arbitrary interference with liberty of contract, with resulting violation of the Fourteenth Amendment. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352, 54 S. Ct. 392, 78 L. Ed. 840, 1934 U.S. LEXIS 508 (U.S. 1934).

2. Construction and application.

This section did not allow an award of attorneys fees where the bond was sufficient to cover the full amount of judgment. Sentinel Indus. Contr. Corp. v. Kimmins Indus. Serv. Corp., 743 So. 2d 954, 1999 Miss. LEXIS 235 (Miss. 1999).

This section [Code 1942, § 378] and companion sections providing for lien in favor of subcontractors, laborers, and materialmen, are applicable to the construction of an interstate railroad, and were not suspended by federal law. Gulf States Creosoting Co. v. Southern Finance & Constr. Corp., 166 Miss. 714, 146 So. 860, 1933 Miss. LEXIS 360 (Miss. 1933).

§ 85-7-195. Process.

To all suits instituted under the provisions of this chapter the parties interested shall be summoned as provided by Section 85-7-145; provided further that where any contractors’ bond has been executed and delivered under any of the foregoing sections of this chapter and the contractor or principal obligor in said bond, or any one or more of said principal obligors therein shall be a non-resident or shall remove from the state, or so conceal himself therein that service of process cannot be directly made upon him personally, then in such case personal service of summons for said absent or absconding principal obligor may be made upon the insurance commissioner of the State of Mississippi in like manner, with the same procedure thereabout, and with the same effect as process may be served on said commissioner in cases of a defendant foreign insurance company; and the delivery of any such bond within this state shall be deemed equivalent to the appointment, by the principal obligors and by the surety or sureties therein, of the state insurance commissioner or his successors in office to be the true and lawful attorney of said obligors upon whom may be served all lawful process in any action or proceeding arising under said bond when for any one of the reasons aforesaid the said principal obligors or any one of them cannot be otherwise served with personal summons in this state, and the delivery of any bond in this chapter mentioned shall be a signification of the agreement and power of attorney of the said principal obligor or obligors and of said sureties that any such process against said principal or principals which is so served shall be of the same legal force and validity as if served upon the said principal or principals personally.

HISTORY: Codes, Hemingway’s 1921 Supp. § 2434g; 1930, § 2281; 1942, § 379; Laws, 1918, ch. 128.

Cross References —

Legal process served upon commissioner as attorney for foreign insurance company, see §83-5-11.

Commissioner of insurance acting as agent for process on foreign insurance company, see §83-21-1.

RESEARCH REFERENCES

Am. Jur.

53 Am. Jur. 2d, Mechanics’ Liens § 368.

CJS.

56 C.J.S., Mechanics’ Liens § 335.

Law Reviews.

Dunn, Construction Contract Claims and Litigation-Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

1. Validity.

This section [Code 1942, § 379] and companion provisions do not, as applied to a bond which expresses an intention to exclude materialmen and laborers, constitute an arbitrary interference with liberty of contract, with resulting violation of the Fourteenth Amendment. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352, 54 S. Ct. 392, 78 L. Ed. 840, 1934 U.S. LEXIS 508 (U.S. 1934).

2. Construction and application.

Materialmen’s suit against principal road contractor and surety on subcontractor’s bond running to principal contractor held governed by statutes regarding suits on bonds to pay for labor and materials furnished, and not by statute requiring notice of suit by publication. United States Fidelity & Guaranty Co. v. Dedeaux, 168 Miss. 794, 152 So. 274, 1934 Miss. LEXIS 364 (Miss. 1934).

Materialmen’s suit against principal road contractor and surety on subcontractor’s bond, held dismissible where former suit filed in another county of same bond, against same surety by materialmen furnishing materials to subcontractor on same subcontract. United States Fidelity & Guaranty Co. v. Dedeaux, 168 Miss. 794, 152 So. 274, 1934 Miss. LEXIS 364 (Miss. 1934).

This section [Code 1942, § 379] and companion sections providing for lien in favor of subcontractors, laborers, and materialmen, are applicable to the construction of an interstate railroad, and were not suspended by federal law. Gulf States Creosoting Co. v. Southern Finance & Constr. Corp., 166 Miss. 714, 146 So. 860, 1933 Miss. LEXIS 360 (Miss. 1933).

§§ 85-7-197 through 85-7-201. Repealed.

Repealed by Laws 2014, ch. 487, § 24, effective upon approval April 11, 2014.

§85-7-197. [Codes, 1930, § 2282; 1942, § 380; Laws, 1928, ch. 136; Laws, 1984, ch. 319, eff from and after July 1, 1984..]

§85-7-199. [Codes, 1930, § 2283; 1942, § 381; Laws, 1928, ch. 136.]

§85-7-201. [Codes, 1930, § 2284; 1942, § 382; Laws, 1928, ch. 136.]

Editor’s Notes —

Former §85-7-197 provided that liens may be recorded in lis pendens record.

Former §85-7-199 related to the entry of satisfaction when liens are paid or extinguished.

Former §85-7-201 related to penalties for filing a false notice and action to expunge.

RESEARCH REFERENCES

ALR.

Amount for which mechanic’s lien may be obtained where contract has been terminated or abandoned by consent of parties or without fault on contractor’s part. 51 A.L.R.2d 1009.

Sale of real property as affecting time for filing notice of or perfecting mechanic’s liens as against purchaser’s interest. 76 A.L.R.2d 1163.

What constitutes “commencement of building or improvement” for purposes of determining accrual of mechanic’s lien. 1 A.L.R.3d 822.

Am. Jur.

53 Am. Jur. 2d, Mechanics’ Liens §§ 184 et seq.

CJS.

57 C.J.S., Mechanics’ Liens §§ 107 et seq.

Law Reviews.

1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.

Dunn, Construction Contract Claims and Litigation-Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

JUDICIAL DECISIONS

1. In general.

In an action by the purchaser of a house for damages against the builder, the trial court erred in sustaining the builder’s demurrer to one count of the complaint charging it with falsely filing a materialmen’s lien in 1977 against the property without providing notice to the purchaser as required by §85-7-197 [repealed] where the claim was not barred by the one-year statute of limitations set out in §85-7-201 [repealed] because the suit had been filed in 1979 within a month after the purchaser first became aware of the lien. The fact that the notice of lien was listed in the “Notice of Construction Liens” book Liens: book established by §85-7-133, rather than on the lis pendens docket established by by §85-7-197 [repealed], did not excuse the builder from the notice requirement of the latter statute. Hicks v. Greenville Lumber Co., 387 So. 2d 94, 1980 Miss. LEXIS 2056 (Miss. 1980).

Knowledge that a house is newly built and that the owner is behind hand in his payments to claimant is not the equivalent of actual notice of the claim of a materialman. Jones Supply Co. v. Ishee, 249 Miss. 515, 163 So. 2d 470, 1964 Miss. LEXIS 412 (Miss. 1964).

Materialmen could have protected their interest against the purchaser of a deed of trust by filing either the contracts under which their liens arose, or lis pendens notices in the office of the chancery clerk. Southern Life Ins. Co. v. Pollard Appliance Co., 247 Miss. 211, 150 So. 2d 416, 1963 Miss. LEXIS 294 (Miss. 1963).

Article 13. Laundry Plant Operators.

§ 85-7-221. Definition.

As used in Sections 85-7-221 through 85-7-233, the term “person” shall mean a natural person, partnership, corporation, or other legal entity.

HISTORY: Codes 1942, § 382-01; Laws, 1946, ch. 468, §§ 1-8; Laws, 1962, ch. 489, eff 30 days from and after passage (approved June 1, 1962).

§ 85-7-223. Sale of clothing, etc., for cleaning charges.

Any garment, clothing, wearing apparel or household goods, which have been repaired, altered, dyed, cleaned, pressed, glazed or laundered, remaining in the possession of a person for a period of ninety (90) days or more, may be sold to pay reasonable or agreed charges, together with any costs or expenses provided for in Sections 85-7-221 through 85-7-233. Except as otherwise provided in Section 85-7-235, the person to whom such charges are payable and owing shall first notify the owner or owners of the proposed sale of the articles belonging to them and the amount of the charges due thereon in the manner prescribed in Section 85-7-227.

HISTORY: Codes, 1942, § 382-01; Laws, 1946, ch. 468 §§ 1-8; Laws, 1962, ch. 489; Laws, 1992, ch. 315, § 1, eff from and after July 1, 1992.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Liens §§ 52, 53 et seq.

12 Am. Jur. Legal Forms 2d, Liens § 165:23 (notice of lien and of sale-launderer’s or drycleaner’s lien for service rendered).

§ 85-7-225. Sale of clothing, etc., for storage charges permitted.

All garments, clothing, wearing apparel, or household goods placed in storage, or on which any of the services or labors mentioned in Section 85-7-223 have been performed and then placed in storage, by agreement and remaining in the possession of a person without the reasonable or agreed charges having been paid for a period of ninety (90) days, may be sold to pay said charges, provided that the person has notified the owner or owners thereof of the sale as prescribed in Section 85-7-227. Persons operating as warehouses or warehousemen shall not be affected by this section.

HISTORY: Codes, 1942 § 382-01; Laws, 1946, ch. 468, §§ 1-8; Laws, 1962, ch. 489; Laws, 1992, ch. 315, § 2, eff from and after July 1, 1992.

§ 85-7-227. Notice to owners.

The mailing by United States certified mail, return receipt requested, of a letter with a return address marked thereon, addressed to the owner or owners, at their last known address or the address given at the time of delivery of such articles to the person, shall constitute notice under the provisions of Sections 85-7-221 through 85-7-233. The letter shall state that the articles upon which the charges are owing will be disposed of unless they are redeemed within thirty (30) days of the mailing of the notice. Said notice shall be mailed at least thirty (30) days before the articles belonging to such owner or owners may be sold for charges due thereon. The cost of mailing said letter shall be added to the charges.

HISTORY: Codes, 1942, § 382-01; Laws, 1946, ch. 468, §§ 1-8; Laws, 1962, ch. 489; Laws, 1992, ch. 315, § 3, eff from and after July 1, 1992.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. Legal Forms 2d, Liens § 165:23 (notice of lien and of sale-launderer’s or drycleaner’s lien for service rendered).

§ 85-7-229. Sale; disposition of proceeds.

If the chattel or chattels are not redeemed within thirty (30) days after the mailing of such letter, the person may sell such articles on the day and at the time and place specified in such letter. Such sales may be made either at public auction or by private sale. The proceeds of the sale in excess of the charges and necessary expenses of the procedure required by Sections 85-7-221 through 85-7-233, shall be held by the person for a period of six (6) months, and if not reclaimed by the owner thereof within that time shall escheat to the county and be paid over to the chancery clerk to be covered into the general fund of the county in which the sale was held.

HISTORY: Codes, 1942, § 382-01; Laws, 1946, ch. 468, §§ 1-8; Laws, 1962, ch. 489, eff 30 days from and after passage (approved June 1, 1962).

§ 85-7-231. Notices required to be posted; form and content of notices.

All persons, taking advantage of Sections 85-7-221 through 85-7-233, must keep posted at all times in a prominent place in their receiving office or offices, two (2) notices of dimensions of not less than eight and one-half (8-1/2) by eleven (11) inches which read as follows: “Not responsible for goods left on hand for more than ninety (90) days. All articles cleaned, pressed, glazed, laundered, washed, altered, dyed or repaired, and not called for in ninety (90) days, will be sold to pay charges,” and “All articles which are stored by agreement and upon which the charges are not paid for ninety (90) days will be sold to pay charges.”

HISTORY: Codes, 1942, § 382-01; Laws, 1946, ch. 468, §§ 1-8; Laws, 1962, ch. 489; Laws, 1992, ch. 315, § 4, eff from and after July 1, 1992.

§ 85-7-233. Purposes and intent of Sections 85-7-221 through 85-7-233.

The purpose and intent of Sections 85-7-221 through 85-7-233 is to provide an inexpensive means of enforcing liens for small amounts, and to that end the provisions of said sections shall be construed to create a lien in addition to, and shall not exclude, any liens which may exist by virtue of either the common law or any other statute of the State of Mississippi.

HISTORY: Codes, 1942, § 382-01; Laws, 1946, ch. 468, §§ 1-8; Laws, 1962, ch. 489, eff 30 days from and after passage (approved June 1, 1962).

§ 85-7-235. Sale of clothing after 180 days without notice or liability to owner.

If any person fails to claim any garment, clothing, wearing apparel, household goods or other article delivered to any laundry or dry cleaning establishment described in Sections 85-7-223 and 85-7-225 and displaying the notice described in Section 85-7-231, for a period of one hundred eighty (180) days, the laundry or dry cleaning establishment, without giving notice to the owner, may dispose of such garment, clothing, wearing apparel, household goods, or other article by whatever means it may choose, without liability or responsibility to the owner.

HISTORY: Laws, 1992, ch. 315, § 5, eff from and after July 1, 1992.

Article 15. Towing and Storage of Motor Vehicles.

§ 85-7-251. Sale of motor vehicle for towing and storage cost; notice requirement.

  1. The owner of a motor vehicle that has been towed at his request or at the direction of a law enforcement officer, or towed upon request of a real property owner upon whose property a vehicle has been left without permission of the real property owner for more than five (5) days, shall be liable for the reasonable price of towing and storage of such vehicle; and the towing company to whom the price of such labor and storage costs may be due shall have the right to retain possession of such motor vehicle until the price is paid.
  2. Within twenty-four (24) hours, the towing company shall report to the local law enforcement agency having jurisdiction any vehicle that has been towed unless the vehicle was towed at the request of the owner of the vehicle. If the owner of a towed vehicle has not contacted the towing company within five (5) business days of the initial tow, the towing company shall obtain from the appropriate authority the names and addresses of any owner and lienholder. If the information from the appropriate authority fails to disclose the owner or lienholder, a good faith effort shall be made by the towing company to locate ownership, including a check for tag information, inspection sticker, or any papers in the vehicle that may indicate ownership. Upon location of the owner and lienholder, the towing company shall notify them by registered mail of the amount due for towing, postmarked no later than the tenth day following the initial tow. If such amount shall not be paid within thirty (30) days from the initial tow, the towing company to whom such charges are payable shall notify by certified mail any legal owner and holder of any lien, as disclosed by the motor vehicle title records or other investigation, of notice of sale of the property. If such property has not been redeemed within ten (10) days after the mailing of the certified letter, the towing company may commence sale of the property at public auction. The towing company shall publish for two (2) consecutive weeks a notice of sale in the newspaper having circulation in the county where the vehicle was initially towed. The proceeds of the sale of such property in excess of the amount needed to pay the towing, reasonable storage and necessary expenses of the procedures required by this section shall be held by the towing company for a period of six (6) months, and, if not reclaimed by the owner thereof within such time, shall become the property of the county and be paid to the chancery clerk of the county in which the sale was held to be deposited into the county general fund, subject, however, to any rights of the recorded lienholder.
  3. The failure to make a good faith effort to comply with the requirements of this section shall preclude the imposition of any storage charges or towing charges against the towed vehicle.
  4. Every towing company shall maintain accurate records for a period of three (3) years, which records shall identify the vehicles it has towed and stored and all procedures that it has taken to comply with the provisions of this chapter.

HISTORY: Laws, 1995, ch. 578, § 1, eff from and after July 1, 1995.

RESEARCH REFERENCES

Am. Jur.

7A, Am. Jur. 2d, Automobiles and Highway Traffic § 284.

CJS.

36A C.J.S., Fines § 19.

JUDICIAL DECISIONS

0.5. In general.

1. Construction with other law.

0.5. In general.

Because issues regarding the possessory rights of the parties remained unresolved, remand for a new trial on the merits was warranted to determine which party had a superior possessory right, under Miss. Code Ann. §§11-37-101 and85-7-251, to vehicles which a towing company towed from an auto repairman’s leased premises at the landlord’s direction. Crowell v. Butts, 153 So.3d 719, 2013 Miss. App. LEXIS 866 (Miss. Ct. App. 2013), cert. denied, 145 So.3d 674, 2014 Miss. LEXIS 395 (Miss. 2014), aff'd in part and rev'd in part, 153 So.3d 684, 2014 Miss. LEXIS 530 (Miss. 2014).

Mechanic’s lien and storage lien statutes which were advanced by a party, who repaired and then stored an excavator, did not allow attorney’s fees. Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So.3d 659, 2013 Miss. App. LEXIS 175 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 586 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 587 (Miss. 2013).

Summary judgment award for a lien against an excavator for storage costs was inappropriate because there was nothing in the stipulation before the county court about storage costs. The affidavits and materials filed in support of the motion for summary judgment discussed storage costs, but did not satisfy the statutory requirements of Miss. Code Ann. §85-7-251. Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So.3d 659, 2013 Miss. App. LEXIS 175 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 586 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 587 (Miss. 2013).

1. Construction with other law.

When defendant faced charges arising from defendant’s operation of defendant’s boat, and the boat was sold, Miss. Code Ann. §§99-49-1(4) did not entitle defendant to dismissal because the statute did not apply, as (1) the boat was never moved from a marina, and (2) the State was not notified the boat was being sold, since Miss. Code Ann. §§85-7-251 only required notice to the boat’s registered owner. Hardy v. State, 137 So.3d 289, 2014 Miss. LEXIS 227 (Miss. 2014).

The mechanic’s lien statute, Miss. Code Ann. §85-7-107 (1999), limits recovery to the costs of labor and materials, unlike §85-7-251, which governs liens available for towing and storing motor vehicles. Allstate Ins. Co. v. Green, 794 So. 2d 170, 2001 Miss. LEXIS 159 (Miss. 2001).

Article 17. General Provisions.

§ 85-7-261. How lien created.

Unless otherwise expressly provided, the liens created or mentioned in this chapter shall exist by virtue of the relation of the parties, and without any writing, or if in writing, without recording; and the rights and liens conferred may be asserted and enforced by the assigns and personal representatives of the lienor.

HISTORY: Codes, 1880, § 1361; 1892, § 2683; 1906, § 3043; Hemingway’s 1917, § 2401; 1930, § 2273; 1942, § 371.

Cross References —

Arbitration of controversies arising out of construction contracts and related agreements, and failure of arbitration to effect liens, see §11-15-101.

Criminal offense of removing property subject to lien out of state, see §97-17-77.

Criminal offense of selling property on which lien exists, see §97-19-51.

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Liens §§ 9, 11, 12 et seq.

16 Am. Jur. Pl & Pr Forms (Rev), Liens, Forms 1 et seq. (creation and perfection of liens).

§ 85-7-263. Liens on the same building, etc. concurrent.

All liens for erecting, constructing, altering, or repairing the same building, house, structure, fixture, boat, water craft, railroad, or railroad embankment shall be concurrent, and shall be paid in proportion out of the proceeds of the property when sold; and in case the sheriff shall have doubts as to the proper application of the money, he may return the same to the court, stating the question, for its determination.

HISTORY: Codes, 1857, ch. 39, art. 14; 1871, § 1617; 1880, § 1392; 1892, § 2712; 1906, § 3072; Hemingway’s 1917, § 2432; 1930, § 2272; 1942, § 370.

Cross References —

Owelty being a lien, see §11-21-33.

Lien created by party being binding on his share of partitioned property, see §11-21-39.

RESEARCH REFERENCES

Am. Jur.

53 Am. Jur. 2d, Mechanics’ Liens §§ 262 et seq.

JUDICIAL DECISIONS

1. In general.

This section [Code 1906, § 3072 (Code 1942, § 370)] applies only to liens for materials furnished to the owner or labor rendered under a contract with the owner, and does not apply to subcontractors, laborers, and materialmen, under the provisions of Code 1906, § 3074. (Code 1942, § 372). Enochs Lumber & Mfg. Co. v. Garber, 116 Miss. 229, 76 So. 730, 1917 Miss. LEXIS 285 (Miss. 1917).

§ 85-7-265. Proceedings under justice courts.

Justice courts shall have jurisdiction of cases arising under this chapter where the amount does not exceed the jurisdictional amount provided for in Section 9-11-9, Mississippi Code of 1972, and the proceedings shall be as nearly in accordance with the provisions of this chapter as may be practicable, and the parties shall have the right of appeal as in other cases. But the sale of buildings under their judgments may be advertised and made as sales of personal property levied on under execution issued by the justice court.

HISTORY: Codes, Hutchinson’s 1848, ch. 45, art. 7 (3); 1857, ch. 39, art. 15; 1871, § 1618; 1880, § 1393; 1892, § 2713; 1906, § 3073; Hemingway’s 1917, § 2433; 1930, § 2271; 1942, § 369; Laws, 1989, ch. 406, § 1, eff from and after July 1, 1989.

Article 19. Qualifying Providers of Burn Care Lien for Causes of Action.

§ 85-7-301. Definitions; lien on causes of action accruing to injured persons for uncompensated traumatic burn care [Repealed effective July 1, 2019].

  1. Except where the context otherwise requires in subsection (2) of this section, as used in Sections 85-7-301 through 85-7-315, the term:
    1. “Qualifying hospital” means any hospital designated as a burn center by the State Department of Health.
    2. “Qualifying practice” means any physician practice that provides care, treatment or services to a patient who has been admitted to a qualifying hospital.
    3. “Care, treatment or services” means burn care or burn-related treatment, or services furnished by a qualifying hospital or qualifying practice.
    4. “Uncompensated traumatic burn care” means any portion of care, treatment or services rendered by a qualifying hospital or qualifying practice with respect to a patient whose burn care, treatment or services arose out of a single accident or occurrence for which the qualifying hospital or qualifying practice did not receive payment.
  2. Any person, firm, authority or corporation operating a qualifying hospital or qualifying practice providing traumatic burn care in this state shall have a lien for the reasonable charges for care, treatment or services of an injured person for uncompensated traumatic burn care, which lien shall be only upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of the person on account of injuries that gave rise to the causes of action and that necessitated the care, treatment or services, subject and subordinate, however, to any attorney’s lien or fees. The lien provided for in this subsection is only a lien against those causes of action and shall not be a lien against the injured person, the legal representative, or any other property or assets of those persons and shall not be evidence of the person’s failure to pay a debt. This subsection shall not be construed to interfere with the exemption from Sections 85-7-301 through 85-7-315 provided by Section 85-7-309, nor shall this subsection prohibit an injured person or his legal representative from negotiating with a qualifying hospital or practice.

HISTORY: Laws, 2013, ch. 512, § 1; reenacted without change, Laws, 2016, ch. 394, § 1, eff from and after July 1, 2016.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

§ 85-7-303. Filing of verified statement; contents; notice [Repealed effective July 1, 2019].

  1. In order to perfect the lien provided for in Section 85-7-301, the operator of the qualifying hospital or qualifying practice:
    1. Shall, not less than fifteen (15) days before the date of filing the statement required under paragraph (b) of this subsection, provide written notice to the patient and the legal representative of the patient, if applicable, and, to the best of the operator’s knowledge, the persons, firms, corporations and their insurers claimed by the injured person or the legal representative of the injured person to be liable for damages arising from the injuries and shall include in the notice a statement that the lien is not a lien against the patient or any other property or assets of the patient and is not evidence of the patient’s failure to pay a debt. The notice shall be sent to all those persons and entities by first-class and certified mail or statutory overnight delivery, return receipt requested; and
    2. Shall file in the office of the clerk of the chancery court of the county in which the qualifying hospital or qualifying practice is located and in the county in which the patient resides, if a resident of this state, a verified statement setting forth the name and address of the patient as it appears on the records of the qualifying hospital or qualifying practice; the name and location of the qualifying hospital or qualifying practice, and the name and address of the operator thereof; the dates of admission and discharge of the patient from the qualifying hospital, or with respect to a qualifying practice, the dates of treatment; the amount claimed to be due for the qualifying hospital or qualifying practice; and certification that the amount claimed is for treatment of uncompensated traumatic burn care, which statement must be filed within the following time period:
      1. If the statement is filed by a qualifying hospital, then the statement shall be filed within seventy-five (75) days after the person has been discharged from the facility; or
      2. If the statement is filed by a qualifying practice, then the statement shall be filed within ninety (90) days after the person first sought treatment from the practice for the injury.
  2. The filing of the claim or lien shall be notice thereof to all persons, firms or corporations liable for the damages, whether or not they received the written notice provided for in this section. The failure to perfect the lien by timely complying with the notice and filing provisions of subsection (1) of this section shall invalidate the lien, except as to any person, firm, or corporation liable for the damages, which receives before the date of any release, covenant not to bring an action, or settlement, actual notice of a notice and filed statement made under subsection (1) of this section, via hand delivery, certified mail, return receipt requested, or statutory overnight delivery with confirmation of receipt.

HISTORY: Laws, 2013, ch. 512, § 2; reenacted without change, Laws, 2016, ch. 394, § 2, eff from and after July 1, 2016.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

§ 85-7-305. Duties of chancery clerk; lien book [Repealed effective July 1, 2019].

The clerk of the chancery court shall endorse the date and hour of filing on the statement filed under Section 85-7-303; and, at the expense of the county, the clerk shall provide a lien book with a proper index in which the clerk shall enter the date and hour of the filing; the names and addresses of the qualifying hospital or qualifying practice, the operators thereof, and the patient; and the amount claimed. The information shall be recorded in the name of the patient.

HISTORY: Laws, 2013, ch. 512, § 3; reenacted without change, Laws, 2016, ch. 394, § 3, eff from and after July 1, 2016.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

§ 85-7-307. Effect of covenant not to bring an action; action to enforce lien; affidavit of payment [Repealed effective July 1, 2019].

  1. No release of the cause or causes of action or of any judgment thereon or any covenant not to bring an action thereon shall be valid or effectual against the lien created by Section 85-7-301 unless the holder thereof is given notification of the results of the cause of action or executes a release of the lien; and the injured party (the “claimant”) or an assignee of the lien holder may enforce the lien by an action against the person, firm or corporation liable for the damages or the person, firm or corporation’s insurer. If the claimant prevails in the action and if the claimant’s balance of the award is insufficient to cover the medical liens, the court may determine pro rata compensation in favor of the claimant. In no case shall the payment towards the liens exceed fifty percent (50%) of the claimant’s balance. Any qualifying hospital or qualifying practice that receives payments under the authority of Sections 85-7-301 through 85-7-315 shall release the claimant from any further liens for the cost of hospital care, treatment or services provided for which the lien was placed. The action shall be begun against the person liable for the damages or the person’s insurer within one (1) year after the date the liability is finally determined by a settlement, by a release, by a covenant not to bring an action, or by the judgment of a court of competent jurisdiction.
  2. No release or covenant not to bring an action that is made before or after the patient was discharged from the qualifying hospital or qualifying practice shall be effective against the lien perfected in accordance with Section 85-7-303, if the lien is perfected before the date of the release, covenant not to bring an action, or settlement unless notification is given to the qualifying hospital or qualifying practice; however, any person, firm or corporation that consummates a settlement, release or covenant not to bring an action with the person to whom care, treatment or services were furnished and that first procures from the injured party an affidavit as prescribed in subsection (3) of this section shall not be bound or otherwise affected by the lien except as provided in subsection (3) of this section, regardless of when the settlement, release or covenant not to bring an action was consummated.
  3. The affidavit shall affirm:
    1. That all bills incurred for treatment for the injuries for which a settlement is made have been fully paid or resolved; and
    2. The county of residence of the affiant, if a resident of this state; however, the person taking the affidavit shall not be protected thereby where the affidavit alleges the county of the affiant’s residence and the lien of the qualifying hospital or qualifying practice is at that time on file in the office of the chancery clerk and is recorded in the name of the patient as it appears in the affidavit.

HISTORY: Laws, 2013, ch. 512, § 4; reenacted without change, Laws, 2016, ch. 394, § 4, eff from and after July 1, 2016.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

§ 85-7-309. Applicability [Repealed effective July 1, 2019].

Sections 85-7-301 through 85-7-315 shall not apply to:

A cause of action filed by a person who received care, treatment or services from a qualifying hospital or a qualifying practice whose medical costs were paid by the Centers for Medicare and Medicaid Services.

Any monies becoming due under the Workers’ Compensation Law.

HISTORY: Laws, 2013, ch. 512, § 5; reenacted without change, Laws, 2016, ch. 394, § 5, eff from and after July 1, 2016.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

§ 85-7-311. Effect of Sections 85-7-301 through 85-7-315 on settlement before entry into qualifying hospital [Repealed effective July 1, 2019].

No settlement or release entered into or executed before the entry of the injured party into the qualifying hospital shall be affected by or subject to the terms of Sections 85-7-301 through 85-7-315.

HISTORY: Laws, 2013, ch. 512, § 6; reenacted without change, Laws, 2016, ch. 394, § 6, eff from and after July 1, 2016.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

§ 85-7-313. No independent right of action to determine liability for injuries [Repealed effective July 1, 2019].

Sections 85-7-301 through 85-7-315 shall not be construed to give any qualifying hospital or qualifying practice an independent right of action to determine liability for injuries sustained by a person or firm.

HISTORY: Laws, 2013, ch. 512, § 7; reenacted without change, Laws, 2016, ch. 394, § 7, eff from and after July 1, 2016.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

§ 85-7-315. False affidavit required by Section 85-7-307 as perjury [Repealed effective July 1, 2019].

Any person who gives any false affidavit as provided by Section 85-7-307 commits the offense of perjury.

HISTORY: Laws, 2013, ch. 512, § 8; reenacted without change, Laws, 2016, ch. 394, § 8, eff from and after July 1, 2016.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

§ 85-7-317. Repeal of Sections 85-7-301 through 85-7-315.

Sections 85-7-301 through 85-7-315 shall stand repealed on July 1, 2019.

HISTORY: Laws, 2013, ch. 512, § 9; Laws, 2016, ch. 394, § 9, eff from and after July 1, 2016.

Amendment Notes —

The 2016 amendment extended the date of the repealer for §§85-7-301 through85-7-315 by substituting “July 1, 2019” for “July 1, 2016.”

Article 21. Special Liens on Real Estate or Other Property.

§ 85-7-401. Definitions.

The following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:

“Business day” means any day that is not a Saturday, Sunday, or legal holiday.

“Contractor” means a contractor having privity of contract with the owner or lessee of the real estate.

“Lien action” means a civil action against the owner of improved property to perfect and make permanent the lien created by Section 85-7-403.

“Payment action” means a lawsuit, proof of claim in a bankruptcy case, or a binding arbitration.

“Professional surveyor” has the meaning given in Section 73-13-71.

“Materials” means materials, tools, appliances, machinery, or equipment used in making improvements to the real estate.

“Materialmen” or “materialman” means all persons furnishing the materials, tools, appliances, machinery, or equipment included in the definition of materials to a contractor or to a subcontractor in privity with the contractor.

“Professional engineer” has the meaning given in Section 73-13-3.

“Residential property” means single-family and two-family, three-family, and four-family residential real estate.

“Statutory overnight delivery” means delivery of a document through the United States Postal Service or through a commercial firm that is regularly engaged in the business of document delivery or document and package delivery in which the sender:

Has directed that delivery be not later than the next business day following the day on which the document is received for delivery by the United States Postal Service or the commercial firm; and

Receives a receipt acknowledging receipt of the document signed by addressee or an agent of the addressee.

“Subcontractor” means subcontractors having privity of contract with the contractor; “subcontractor” also means subcontractors having privity of contract with a subcontractor having privity of contract with the contractor.

“Registered architect” has the meaning given in Section 73-1-3.

“Design professional” includes professional surveyors, professional engineers and registered architects.

HISTORY: Laws, 2014, ch. 487, § 1, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-403. Special lien on real estate or other property for labor, services or materials furnished.

  1. The following persons shall each have a special lien on the real estate or other property for which they furnish labor, services or materials:
    1. All contractors, all subcontractors and all materialmen furnishing material for the improvement of real estate;
    2. All registered architects or professional engineers furnishing plans, drawings, designs, or other architectural or engineering services on or with respect to any real estate;
    3. All registered land surveyors performing or furnishing services on or with respect to any real estate.
  2. Each special lien specified in subsection (1) of this section may attach to the real estate of the owner for which the labor, services or materials are furnished if they are furnished at the instance of the owner, design professional or contractor or a subcontractor having direct privity of contract with a contractor, and shall include the value of work done and labor, services or materials furnished.
  3. Each special lien specified in subsection (1) of this section shall be limited to the amount due and owing the lien claimant under the terms of its express or oral contract, subcontract or purchase order subject to Section 85-7-405(4).
  4. Each special lien specified in subsection (1) of this section shall include interest on the principal amount due in accordance with Section 75-17-1, 75-17-7 or 75-17-19 as applicable by law.
  5. Notwithstanding any other provision of this article, no lien shall exist in favor of any contractor or subcontractor who is not licensed as required by either Section 31-3-1 et seq., or Section 73-59-1 et seq., or who contracts with any contractor or subcontractor who is not licensed as required. Upon request, any contractor or subcontractor is required to provide any owner, contractor, subcontractor or materialman a copy of that person’s current license.

HISTORY: Laws, 2014, ch. 487, § 2, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-405. Creation and declaration of lien; requisite statement and notice; payment action; amendment of claim of lien; priority of liens.

  1. To make good a lien created in Section 85-7-403(1), it must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable:
    1. A substantial compliance by the party claiming the lien with the party’s contract, subcontract or purchase order for work performed or labor, services or material provided in the building, repairing, or improving of real estate; for architectural services furnished; for registered land surveying or registered professional engineering services furnished or performed; or for materials or machinery furnished;
    2. The filing for record of the claim of lien in the office of the clerk of the chancery court of the county where the property is located within ninety (90) days after the claimant’s last work performed, labor, services or materials provided, the furnishing of architectural services, or the furnishing or performing of surveying or engineering services. The lien shall include a statement regarding its expiration pursuant to Section 85-7-421(1) and a notice to the owner of the property on which a claim of lien is filed that the owner has the right to contest the lien; the absence of the statement or notice shall invalidate the lien. The claim shall be in substance as follows:

      “A.B., a mechanic, contractor, subcontractor, materialman, machinist, manufacturer, registered architect, registered forester, registered land surveyor, registered professional engineer, or other person (as the case may be) claims a lien in the amount of (specify the amount claimed) on the building, structure, house, factory, mill, machinery, or railroad (as the case may be) and the premises or real estate on which it is erected or built, of C.D. (describing the houses, premises, real estate, or railroad), for satisfaction of a claim which became due on (specify the date the claim was due, which is the same as the last date the labor, services or materials were supplied to the premises) for work performed or labor, services provided (or whatever the claim may be).

      THIS CLAIM OF LIEN EXPIRES AND IS VOID ONE HUNDRED EIGHTY (180) DAYS FROM THE DATE OF FILING OF THE CLAIM OF LIEN IF A PAYMENT ACTION IS NOT FILED BY THE CLAIMANT WITHIN THAT TIME PERIOD.

      NOTICE TO OWNER OF PROPERTY: You have the right to contest this claim of lien pursuant to Mississippi law.”

      No later than two (2) business days after the claim of lien is filed of record, the lien claimant shall send a true and accurate copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner of the property or, if the owner’s address cannot be found, the contractor, as the agent of the owner; if the property owner is an entity on file with the Secretary of State’s office, sending a copy of the claim of lien to the entity’s address or the registered agent’s address shall satisfy this requirement. If the lien claimant is not the contractor, he shall also send a copy of the claim of lien within two (2) business days by registered or certified mail or statutory overnight delivery to the contractor or to the contractor’s registered agent.

      1. A payment action for the recovery of the amount of the lien claimant’s claim against the party he contracted with shall be commenced in county, circuit or chancery court within one hundred eighty (180) days from the date of filing for record of the lien claimant’s claim of lien. A lis pendens notice shall be filed with the commencement of the action with a copy to the owner and contractor;
      2. The payment action shall be commenced by summons and complaint. The defendants shall be summoned, as in other actions at law, to appear and defend the action; and in case any necessary party defendant shall be a nonresident of or absent from the state, or cannot be found, he may be made a party by publication, as in cases of nonresident or absent defendants in chancery, requiring him to appear on a day to be therein named; and in default of appearance, the same proceedings shall be had as if the defendant had been duly summoned and made default;
      3. Nothing in this paragraph (c) shall prejudice the parties’ contractual rights to arbitration, as applicable;
    3. 1. The party has been adjudicated a bankrupt;

      2. If an individual, the party is deceased; or

      3. Payment is not due to the lien claimant under the applicable contract agreement until after payment is received by the party with whom the lien claimant contracted.

      1. The commencement of a payment action under paragraph (c) is not required if the owner has not made payment to the contractor and the lien claimant cannot secure a final judgment against the party with whom the lien claimant contracted because:
      2. If paragraph (d) (i) of this section applies, the person or persons furnishing labor, services or materials may enforce the lien directly against the property in a lien action against the owner if it is filed within the required time for filing a payment action, with the judgment rendered in the proceeding to be limited to a judgment in rem against the property improved and to impose no personal liability upon the owner of the property. A lis pendens notice shall be filed with the commencement of this lien action with a copy to the owner and the contractor.
      3. Nothing in this paragraph (d) shall impact or negate the rights and defenses available pursuant to Section 85-7-413 or 85-7-419.
    4. A claim of lien may be amended at any time to increase or reduce the amount claimed, and the amended claim of lien shall relate back to the date of filing for record of the original claim of lien. An amended claim of lien filed for record pursuant to this subsection shall be sent to the owner of the property in the same manner as required for a claim of lien in subsection (1) (b) of this section and shall be in substance as follows:

      “That certain claim of lien filed by A.B. against property of C.D. on (date) and recorded at book (book#), page (page#) in the lien index of (name of county) County is hereby amended by increasing/reducing (cross out one) the amount of the claim of lien to (specify reduced amount claimed). The remaining terms of the original claim of lien are hereby incorporated by reference into this amended claim of lien. This amended claim of lien relates back to the date that the original claim of lien was filed for record.”

    1. The liens specified in Section 85-7-403 (“construction liens”) shall be inferior to liens for taxes, but construction liens shall be superior in priority to all other liens except as specified in subsection (2) (b) and (c).
    2. Except as provided in subsection (2)(c), a construction lien shall have priority over all other liens, deeds of trust, mortgages or encumbrances filed after the date and time of the filing of the notice of lien in the office of the chancery clerk of the county in which the land is located. All liens, deeds of trust, mortgages and encumbrances filed before the date and time of the filing of the notice of construction lien shall have priority over the construction lien, whether the work secured by the lien was performed before or after the filing of the lien, deed of trust, mortgage or other encumbrance. This priority will extend to amendments or restatements and assignments of the lien, deed of trust, mortgage and other encumbrance. The priorities in this subsection are determined by the date and time of filing and without regard to the actual knowledge of the parties of unrecorded liens. Enforcement of a construction lien shall not affect any prior deeds of trust or other liens, and a purchaser, in connection with the enforcement of a construction lien, shall take the property subject to any prior liens, deeds of trust, mortgages or encumbrances of which the purchaser has actual or constructive notice on the date of the purchase. Foreclosure of any prior deeds of trust or other liens shall terminate and extinguish the subordinate construction lien or other interest as to the land and the buildings and improvements thereon, whether or not at the time of the foreclosure the construction lien or interest has been perfected in accordance with the provisions of this article, and the subordinate lienholder shall have the rights in any excess proceeds received by the foreclosing lienholder as provided by law.
    3. A deed of trust, mortgage, assignment of leases and rents, fixture filing or other security agreement affecting real property is a construction mortgage to the extent it secures a loan or loans for the purpose of financing the repair or construction of an improvement on the real property, which may include the acquisition cost of the real property. A construction lien is subordinate to a construction mortgage if the construction mortgage is filed in the land records before a notice of a claim of lien is filed pursuant to Section 85-7-405 and the lender, secured party, mortgagee, beneficiary or holder of the construction mortgage obtained either: (i) an affidavit or sworn statement from the owner to the effect that no work has been performed on, or materials delivered to, the real property; or (ii) an affidavit or sworn statement from the contractor, or owner if there is no contractor, as provided in Section 85-7-413(1) (b) regarding payment for work, materials or services provided. A construction mortgage has this priority for all loan advances secured thereby regardless of whether the advances are made before or after the filing of a notice of a construction lien, and this priority will extend to amendments, restatements and refinancings of the construction mortgage.
    1. Following compliance with the requirements of subsection (1) of this section, in any proceeding against the owner to enforce a lien created by Section 85-7-403 against the property, the party having a direct contractual relationship with the lien claimant shall not be a necessary party, but may be made a party. The design professional, contractor or subcontractor, or all of them, may intervene in the proceedings at any time before judgment for the purpose of resisting the establishment of the lien or of asserting against the lien claimant any claim of the contractor or subcontractor growing out of or related to the contract, subcontract or purchase order upon which the asserted lien is based.
    2. Any party to an action against the owner to enforce a lien against the property, by appropriate plea, may put in issue the fact of indebtedness or the existence of the lien, or both, and may interpose any other defense or join any counterclaim applicable to the action; and if the court by its finding, or the jury by their verdict, as the case may be, ascertain that the plaintiff has a lien as claimed, judgment shall be entered for the amount secured thereby, plus interest and costs, against the party liable for the same.
    3. The court, in its discretion, may award reasonable costs, interest and attorney’s fees to the prevailing party in an action against the owner to enforce a lien against the property.
    4. All liens arising under Section 85-7-403 shall have an equal priority, and be first paid out of the proceeds of the sale of the property, or money collected from the owner; and if the proceeds and money are insufficient to satisfy the liens in full, the proceeds and money shall be distributed pro rata among the claimants thereof or as otherwise ordered by the court.
  2. In no event shall the aggregate amount of liens created by Section 85-7-403 exceed the contract price as determined by the terms of the contract or other agreement between the owner and contractor for the improvements made or services performed.
    1. If payments have been made in reliance upon either lien waivers issued by lien claimants pursuant to Section 85-7-413(1) (a) or sworn written statements of the contractor pursuant to Section 85-7-413(1) (b), the aggregate amount of liens created by Section 85-7-403 in favor of subcontractors and materialmen who are not in privity of contract with the owner shall not exceed the unpaid balance of the contract price under the terms of the contract or agreement between the owner and the contractor at the time the first notice of lien is filed pursuant to this section.
    2. If payments have been made in reliance upon either lien waivers issued by lien claimants pursuant to Section 85-7-413(1) (a) or sworn written statements of the contractor pursuant to Section 85-7-413(1) (b), the aggregate amount of liens created by Section 85-7-403 in favor of design professionals who are not in privity of contract with the owner shall not exceed the unpaid balance of the contract price under the terms of the contract or agreement between the owner and the design professional who is in privity of contract with the owner at the time the first notice of lien is filed pursuant to this section.

HISTORY: Laws, 2014, ch. 487, § 3, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-407. Contractors to furnish list of all subcontractors and materialmen upon written request of property owner; information to be provided by persons not having privity of contract with contractor; applicability of section.

  1. Upon the written request of the property owner by registered or certified mail or statutory overnight delivery, the contractor shall furnish to the owner a complete list of all subcontractors and materialmen and upon written request from the contractor, all subcontractors shall provide the same information. If the contractor or subcontractor willfully fails or refuses to furnish the list or to give the information to the owner or contractor within a reasonable time, he shall thereby forfeit his right to a lien under this article. Similarly, if the contractor or subcontractor fails to pay any materialman or subcontractor in direct privity with him in accordance with any contract, subcontract or purchase order specifically requiring him to do so, he shall thereby forfeit his right to a lien under this article.
  2. For any person having a right to a lien pursuant to Section 85-7-403 who does not have privity of contract with the contractor, or, if there is no contractor, with the owner, and is providing labor, services or materials for the improvement of property, within thirty (30) days following the first delivery of labor, services or materials to the property, the person shall give a written notice to the contractor, or, if there is no contractor, to the owner, either by e-mail with a confirmed receipt, registered or certified mail, or statutory overnight delivery setting forth the following:
    1. The name, address, and telephone number of the person providing labor, services or materials;
    2. The name and address of each person at whose instance the labor, services or materials are being furnished;
    3. The name of the project and location of the project to which labor, services or materials are provided; and
    4. A description of the labor, services or materials being provided and, if known, the contract price or anticipated value of the labor, services or materials to be provided.

      If the person not in privity of contract with the contractor fails to provide the required notice to the contractor, he shall thereby forfeit his right to a lien under this article.

  3. When a claimant is requested to execute a waiver and release in exchange for or to induce the making of an interim or final payment in accordance with Section 85-7-419(2) or (3), and does so, if payment is made pursuant to the waiver and release and the design professional, contractor or subcontractor, without good cause, in turn willfully fails or refuses to pay the claimant the amount claimed as set forth in the waiver and release, then the design professional, contractor or subcontractor, as the case may be, shall be liable to the claimant in the amount of three (3) times the amount claimed on the face of the waiver and release. Good cause includes, but is not limited to, any defense available pursuant to the terms of the applicable contract, subcontract or purchase order.
  4. The provisions of this section do not apply to single-family residential construction.

HISTORY: Laws, 2014, ch. 487, § 4, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-409. Limitation of recovery of subcontractors against single-family residential homeowner.

  1. As to single-family residential construction only, payment made by or on behalf of the owner to a contractor or design professional in privity with the owner, for the work of a subcontractor, materialman, professional engineer or professional surveyor, shall be an absolute defense to any claim of lien made by the subcontractor, materialman, professional engineer or professional surveyor, (a) but only to the extent of the payment actually made by or on behalf of the owner to the contractor or design professional in privity with the owner, and (b) only to the extent the owner has not received a pre-lien notice in accordance with subsection (2) of this section before the payment.
  2. As to single-family residential construction only, as a condition precedent of any right to a special lien under Section 85-7-403 in favor of a subcontractor, materialman or design professional not in privity with the owner, the claimant must provide the owner a pre-lien written notice at least ten (10) days before filing a claim of lien under Section 85-7-405, which can be evidenced by any reliable means of delivery.
  3. The claimant’s written notice required in subsection (2) shall be in substantially the same form as the Pre-Lien Notice set forth in Section 85-7-433(5).

HISTORY: Laws, 2014, ch. 487, § 5, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-411. Attachment of liens to buildings or improvements on leased property.

    1. When the building or improvement is erected under or by virtue of any contract with a lessee in possession, and the erection thereof is not in violation of the terms or conditions of the lease, the lien shall attach to the building or improvement, and to the unexpired term of the lease, and the holder of the lien shall have the right to avoid a forfeiture of the lease by paying rent to the lessor, as it becomes due and payable, or by the performance of any other act or duty to which the lessee is bound.
    2. If the lien can be enforced by a sale of the building or improvement, the purchaser may, at his election, (i) become entitled to the possession of the demised premises, and to remain therein for the unexpired term, by paying rent to the lessor, or performing any other act or duty to which the lessee was bound, as if he were the assignee of the lease; or (ii) he may, within sixty (60) days after the sale, remove the building or improvement from the premises, but only to the extent that it is detachable from the real property without injury to the real property; and if he elects to take possession and to remain therein until the expiration of the term of the lease, he may, within a reasonable time after the expiration of the term, remove the building or improvement from the premises, but only to the extent that it is detachable from the real property without injury to the real property.
    3. If, before a sale, the holder of the lien has made any payments of rent, or other pecuniary compensation to the lessor, which ought to have been paid by the lessee, he shall be reimbursed for the payments from the proceeds of the sale.
  1. When a lien attaches under subsection (1) of this section, the lessor, at any time before a sale of the property, shall have a right to discharge the lien by paying to the holder the amount secured thereby, including costs and all monies he may have paid to the lessor to prevent a forfeiture of the lease, and, after a sale, he shall have the right to prevent the removal of the building or improvement from the premises by paying to the purchaser the value of the building or improvement; and upon the payment, either to the holder of the lien or to the purchaser, the building or improvement shall become the property of the lessor.
  2. Notwithstanding subsections (1) and (2) of this section, unless done by the written consent of the owner, only the building or improvements erected, and then only to the extent that they are detachable from the real property without injury to the real property, as well as the estate of the tenant in the land, shall be subject to the lien.

HISTORY: Laws, 2014, ch. 487, § 6, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

JUDICIAL DECISIONS

Under Former Law

11. Validity.

12. Liability generally.

13. Contracts by non-owning spouse.

14. Enforcement of lien.

Under Former Law

11. Validity.

12. Liability generally.

Statute subjecting to mechanic’s lien only house, building, etc., erected, constructed, etc., at instance of one not owner of land, unless done by owner’s written consent, was not invalid as depriving owner of property without due process. Chears Floor & Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426, 1930 Miss. LEXIS 374 (Miss. 1930).

A contractor had both an equitable and a statutory lien on a house that it built, even though, unbeknownst to the contractor, the promissory note and deed of trust granting it such liens had been executed by relatives of the true property owner, where the property owner had permitted and acquiesced in the construction of the house on his land and the occupancy thereof by his relatives, who had defaulted on the note. Jim Walter Corp. & Mid-State Homes, Inc. v. Gates, 370 So. 2d 928, 1979 Miss. LEXIS 2027 (Miss. 1979).

Holders of vendor’s lien, not being “owners ” within statute limiting lien, unless alterations are made with owner’s written consent, need not consent in writing to waive lien. Azwell v. Mohamed, 164 Miss. 80, 143 So. 863, 1932 Miss. LEXIS 228 (Miss. 1932).

Building erected on lot by owners was subject to lien for materials furnished at instance and request of one of owners, though charged to third person’s account; however, material furnished to person other than owner for partial construction of building will not support lien on building, although furnished with owner’s knowledge and consent. Stubbs v. Capital Paint & Glass Co., 160 Miss. 832, 131 So. 806, 135 So. 945, 1931 Miss. LEXIS 122 (Miss. 1931).

Structure alone erected by person not owner of land may be subject to mechanic’s lien, if detachable from original building without injury to latter. Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544, 1931 Miss. LEXIS 10 (Miss. 1931).

Any fixture erected or installed by person not owner of land, as well as alterations and repairs on building made by one other than owner, may be subject of mechanic’s lien, if detachable from building without injury; but materialman or laborer could not acquire lien on improvement made by mere trespasser without any interest in property, possessory or otherwise. Chears Floor & Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426, 1930 Miss. LEXIS 374 (Miss. 1930).

Entire house, constructed by person not owner of land, may be subject to mechanic’s lien, but not lot, unless work was done with owner’s written consent. Chears Floor & Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426, 1930 Miss. LEXIS 374 (Miss. 1930).

13. Contracts by non-owning spouse.

Residence constructed by wife on lot owned by her was not subject to lien for materials furnished on husband’s account, in view of circumstances under which materials were furnished. Stubbs v. Capital Paint & Glass Co., 160 Miss. 832, 131 So. 806, 135 So. 945, 1931 Miss. LEXIS 122 (Miss. 1931).

Statute, if construed to create mechanic’s lien on entire residence owned by wife for materials furnished husband on his own account in constructing additional room, would be unconstitutional as taking property without due process. Chears Floor & Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426, 1930 Miss. LEXIS 374 (Miss. 1930).

Wife’s property was not liable for material used in erection of building on her land, purchased by husband without her consent. Schiaffino v. Christ, 96 Miss. 801, 51 So. 546, 1910 Miss. LEXIS 185 (Miss. 1910).

Where a contract for plumbing on the separate property of the wife is made with the husband and on his credit, without the written consent of the wife, her property cannot be held liable. O'Gwinn v. Winner, 25 So. 354 (Miss. 1899).

14. Enforcement of lien.

A lumber contractor who made home improvements with the owners’ knowledge and consent but without their written permission was entitled to a lien to cover the cost of improvements for which the price had not been paid only to the extent that the improvements could be removed without damaging the owners’ interest in the house where an oral construction contract was negotiated with the daughter of the owners who, although she lived in the house and made payments to her parents equivalent to mortgage payments, was neither the beneficiary of a resulting trust in the house nor the vendee of an enforceable contract of sale, and thus, had no interest in the house to which the lien could attach. Brown v. Gravlee Lumber Co., 341 So. 2d 907, 1977 Miss. LEXIS 2282 (Miss. 1977).

Where the owner of a service station did not consent either expressly or impliedly to the erection of the awning at the service station, the seller could not enforce lien on the building or on the land. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

Where the original lessee had assigned its leasehold interest to another, who in turn rented to a person who incurred a debt upon which a mechanic’s lien was attempted to be enforced, the original lessee was not a necessary and indispensable party to the suit. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

The owner of the leasehold interest upon which a mechanic’s lien is sought to be enforced is a necessary party to the suit. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

In an action against sublessee and owner of service station by seller of metal awning which was installed at the request of sublessee, the question of whether the awning could be detached and removed from the service station without impairment and damage to the premises, was for the jury. Jay Industries, Inc. v. Powell, 220 Miss. 372, 71 So. 2d 193, 1954 Miss. LEXIS 449 (Miss. 1954).

Where husband contracted for erection of building on wife’s land, materialman, to enforce his lien against building alone, must make wife and contractor parties. Flake v. Central Hardware Co., 96 Miss. 838, 51 So. 461, 1910 Miss. LEXIS 178 (Miss. 1910).

§ 85-7-413. Dissolution of special liens.

  1. The special lien specified in Section 85-7-403(1) shall be dissolved and unenforceable if the owner, purchaser from owner, or lender providing construction or purchase money or any other loan secured by real estate shows that:
    1. Payment or release of funds was made by the owner, purchaser or lender in reliance upon a lien waiver issued by the lien claimant pursuant to Section 85-7-419; or
    2. Payment or release of funds was made by the owner, purchaser or lender in reliance upon a sworn written statement of the contractor that the agreed price or reasonable value of the labor, services or materials has been paid or waived in writing by the lien claimant. If the sworn written statement, as required by the paragraph (b), is falsely and knowingly made, then all parties injured thereby shall have a right of action against the maker of the sworn written statement for damages in the amount of three (3) times their actual damages sustained on account of the willfully and falsely made sworn written statement.
  2. In a lien action, the owner of the improved real estate shall have a defense to the extent of any payment for the work, materials or services that are the subject of the lien made to a contractor or design professional in privity of contract with the owner or to a subcontractor in good-faith reliance upon receipt of a lien waiver pursuant to subsection (1)(a), or upon receipt of a sworn written statement pursuant to subsection (1)(b), and before receipt of notice of the filing by the lien claimant of a notice of lien pursuant to Section 85-7-405 or an affidavit of nonpayment pursuant to Section 85-7-419(5)(b).

HISTORY: Laws, 2014, ch. 487, § 7, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-415. Discharge of lien by filing bond.

  1. When any person entitled under this article to claim a lien against any real estate located in this state files a lien in the office of the clerk of the chancery court of the county in which the real estate is located, the owner of the real estate or the contractor or subcontractor employed to improve the property may, before or after foreclosure proceedings are instituted, discharge the lien upon the approval of a bond by the clerk of the chancery court. The bond shall be conditioned to pay to the holder of the lien the sum that may be found to be due the holder upon the trial of any payment action that may be filed by the lienholder to recover the amount of the claim within one hundred eighty (180) days from the time the claim of lien is filed or as otherwise required by Section 85-7-423. The bond shall be one hundred ten percent (110%) of the amount claimed under that lien and shall be either a cash bond or a bond with good security approved by the clerk of the chancery court and issued by any surety company authorized to do business in the State of Mississippi. Upon approval by the clerk of the bond, the real estate shall be discharged from the lien.
  2. Within seven (7) days of filing the bond required by subsection (1) of this section and any attachments, the party filing the bond shall send a notice of filing the bond and a copy of the bond by registered or certified mail or statutory overnight delivery to the lien claimant at the address stated on the lien or, if no address is shown for the lien claimant, to the person shown as having filed the lien on behalf of the claimant at the indicated address of the person and, if the bond is filed by a contractor or subcontractor, to the owner of the property and the contractor; however, if the lien claimant or the owner or contractor is an entity on file with the Secretary of State’s office, sending the notice of filing the bond and a copy of the bond to the company’s address or the registered agent’s address on file with the Secretary of State shall be deemed sufficient; failure to send the notice of filing the bond and copy of the bond shall not invalidate the bond for purposes of discharge of a claim of lien under this section. With respect to bonds secured by property, the clerk shall not accept any real property bond unless the real property is scheduled in an attached affidavit setting forth a description of the property and indicating the record owner thereof, including any liens and encumbrances and amounts thereof, the market value, and the value of the sureties’ interest therein, which affidavit shall be executed by the owner or owners of the interest; the bond and affidavit shall be recorded in the same manner and at the same cost as other deeds of real property. So long as the bond exists, it shall constitute a lien against the property described in the attached affidavit.
  3. The clerk of the chancery court shall have the right to rely upon the amount specified in the claim of lien in determining the sufficiency of any bond to discharge under this section. The failure to specify both the amount claimed due under the lien and the date the claim was due shall result in the lien not constituting notice for any purposes.
  4. The clerk of the chancery court shall be held harmless for good faith regarding any discretionary act in connection with approval of any bond provided for in this section.

HISTORY: Laws, 2014, ch. 487, § 8, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-417. Privileges and benefits of partnerships, corporations or associations with respect to special liens on real estate.

If services are performed or furnished with respect to any real estate by any design professional who is a member of a partnership or who is an agent or employee of a corporation or an association and the contract for the services is made for or on behalf of the owner with the partnership or corporation or association, the partnership, corporation or association shall be entitled to all the privileges and benefits of Section 85-7-403, just as if the partnership, corporation or association were a design professional.

HISTORY: Laws, 2014, ch. 487, § 9, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-419. Waiver and release of lien or bond claim.

  1. A right to claim a lien or to claim upon a bond may not be waived in advance of furnishing of labor, services or materials. Any purported waiver or release of lien, bond claim or this article executed or made in advance of furnishing labor, services or materials is null, void and unenforceable.
  2. When a claimant is requested to execute a waiver and release in exchange for or in order to induce payment other than final payment, the waiver and release shall substantially follow the Interim Waiver and Release upon Payment form set forth in Section 85-7-433(1). The failure to correctly complete any of the blank spaces in the referenced form does not invalidate the form if the subject matter of the release reasonably may be determined.
  3. When a claimant is requested to execute a waiver and release in exchange for or in order to induce making of final payment, the waiver and release shall substantially follow the Waiver and Release upon Final Payment form set forth in Section 85-7-433(2). The failure to correctly complete any of the blank spaces in the referenced form does not invalidate the form if the subject matter of the release reasonably may be determined.
  4. Nothing contained in this section shall affect:
    1. The enforceability of any subordination of lien rights by a potential lien claimant to the rights of any other party which may have or acquire an interest in all or any part of the real estate or other property for which the potential lien claimant has furnished labor, services or material, even though the subordination is entered into in advance of furnishing labor, services or material, and even though the claimant has not actually received payment in full for its claim;
    2. The enforceability of any waiver of lien rights given in connection with the settlement of a bona fide dispute concerning the amount due the lien claimant for labor, services or material which have already been furnished; or
    3. The validity of a cancellation or release of a recorded claim of lien.
    1. When a waiver and release provided for in this section is executed by the claimant, it shall be binding against the claimant for all purposes, subject only to payment in full of the amount set forth in the waiver and release.
    2. Amounts shall conclusively be deemed paid in full upon the earliest to occur of:
      1. Actual receipt of funds;
      2. Execution by the claimant of a separate written acknowledgment of payment in full; or
      3. Sixty (60) days after the date of the execution of the waiver and release, unless before the expiration of the sixty-day period the claimant files in the county in which the property is located an affidavit of nonpayment, using substantially the affidavit of nonpayment form set forth in Section 85-7-433(3), and sends a true and accurate copy of the affidavit of nonpayment to the owner of the property in the manner provided in Section 85-7-405 for sending a notice of a claim of lien to the owner.
    3. A claimant who is paid, in full, the amount set forth in the waiver and release form after filing an affidavit of nonpayment shall upon request execute in recordable form an affidavit swearing that payment in full has been received. Upon recordation thereof in the county in which the affidavit of nonpayment was recorded, the affidavit of nonpayment to which it relates shall be deemed void.
    4. Nothing in this section shall shorten the time within which to file a claim of lien.
    5. Except as provided in Section 85-7-413, a waiver and release provided in accordance with this section shall be suspended upon the filing of an affidavit of nonpayment until payment in full has been received. However, an affidavit of nonpayment shall not affect dissolution of the claimant’s lien or the availability or enforceability of any owner’s defenses pursuant to Section 85-7-413, if applicable.
    6. The claimant may rely upon the information contained in the waiver and release form when completing for filing the affidavit of nonpayment.

HISTORY: Laws, 2014, ch. 487, § 10, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-421. Expiration of claim of lien if payment action not timely filed; filing cancellation of fully satisfied lien.

  1. Failure of a lien claimant to commence a payment action to collect the amount of his or her claim within one hundred eighty (180) days from the date of filing the lien renders the claim of lien unenforceable. Any lien filed shall include on the face of the lien the following statement in at least 12 point bold font: “THIS CLAIM OF LIEN EXPIRES AND IS VOID ONE HUNDRED EIGHTY (180) DAYS FROM THE DATE OF FILING OF THE CLAIM OF LIEN IF A PAYMENT ACTION IS NOT FILED IN THAT TIME PERIOD.” Failure to include the required language shall invalidate the lien and prevent it from being filed. No release or voiding of the liens shall be required. A lien shall expire sooner and be disregarded once it is determined that no notice of commencement was timely filed in response to a notice of contest pursuant to Section 85-7-423.
  2. Whenever any lien has been fully satisfied, the holder thereof shall file a cancellation of it in the record in the office of the chancery clerk.
  3. Any holder of a lien, who, after having been fully paid, fails for fifteen (15) days after demand in writing to file a cancellation as provided in subsection (1) of this section, shall be liable to any person thereby injured for the amount of the injury, which shall not be less than Five Hundred Dollars ($500.00) per day that the required cancellation is not timely filed, plus reasonable attorney’s fees and costs.

HISTORY: Laws, 2014, ch. 487, § 11, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-423. Shortening the time prescribed in which to file payment action.

  1. An owner or an owner’s agent or attorney, or the contractor or contractor’s agent or attorney, may elect to shorten the time prescribed in which to commence a payment action to enforce any claim of lien by recording in the chancery clerk’s office a notice in substantially the form set forth in Section 85-7-433(4), along with proof of delivery to the lien claimant.
  2. The clerk of the chancery court shall cross-reference the notice of contest of lien to the lien. The owner or the owner’s agent or attorney, or the contractor or the contractor’s agent or attorney, shall send a copy of the notice of contest of lien by registered or certified mail or statutory overnight delivery to the lien claimant at the address noted on the face of the lien within seven (7) days of filing. Service shall be deemed complete upon mailing.
  3. The lien shall be extinguished by law upon the earlier of ninety (90) days after the filing of the notice of contest of lien, or one hundred eighty (180) days from the date of lien filing if no payment action is filed in that time period. No release or voiding of the liens shall be required. This subsection shall not be construed to extend the time in which a payment action must begin.

HISTORY: Laws, 2014, ch. 487, § 12, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-425. Computation of time.

The computation of time under this article shall be determined pursuant to Section 1-3-67.

HISTORY: Laws, 2014, ch. 487, § 13, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-427. Enforcement of judgments by special writ of execution.

  1. Judgments establishing the lien, and ordering the property sold for the satisfaction thereof, may be enforced by special writ of execution as set forth in Section 85-7-153.
  2. The delivery of possession by the person claiming the lien shall not affect his lien.

HISTORY: Laws, 2014, ch. 487, § 14, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-429. Liability for falsely and knowingly filing claim of lien without just cause.

  1. Any person who shall falsely and knowingly file the claim of lien provided in this article without just cause shall be liable to every party injured thereby for a penalty equal to three (3) times the full amount for which the claim was filed, to be recovered in an action by any party so injured at any time within one hundred eighty (180) days from the filing of the claim of lien.
  2. Any person whose rights may be adversely affected by wrongful filing of a claim of lien, as provided by this article may, in addition to the remedies set forth in subsection (1) of this section, apply, upon seven (7) days’ notice, to the circuit, county or chancery court, to expunge or vacate the claim of lien, in accordance with Rule 81(d) (2) of the Mississippi Rules of Civil Procedure.

HISTORY: Laws, 2014, ch. 487, § 15, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-431. Payment bond as substitution for subcontractor or materialmen liens.

Where a contractor gives a payment bond providing payment protection to subcontractors and material suppliers to the full extent provided by the Mississippi Little Miller Act found at Section 31-5-51, the payment bond shall be in substitution for the liens provided for a subcontractor or materialman in this article. The contractor’s right to a lien is not affected by the provision of a bond.

HISTORY: Laws, 2014, ch. 487, § 16, eff from and after passage (approved Apr. 11, 2014).

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

§ 85-7-433. Forms; interim waiver and release upon payment; waiver and release upon final payment; affidavit of nonpayment; notice of contest of lien; pre-lien notice to owner.

  1. The following form is the Interim Waiver and Release Upon Payment form referred to in Section 85-7-419:

    INTERIM WAIVER AND RELEASE UPON PAYMENT

    STATE OF MISSISSIPPI

    COUNTY OF_______________

    THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY_______________(NAME OF CONTRACTOR) TO FURNISH_______________(DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS_______________(TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF_______________ , COUNTY OF_______________ , AND IS OWNED BY_______________(NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:

    (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)

    UPON THE RECEIPT OF THE SUM OF $ _______________ , THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND THROUGH THE DATE OF_______________(DATE) AND EXCEPTING THOSE RIGHTS AND LIENS THAT THE MECHANIC AND/OR MATERIALMAN MIGHT HAVE IN ANY RETAINED AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID BUILDING OR PREMISES.

    _______________

    SIGNATURE

    BY:_______________

    (PRINT NAME)

    ITS:_______________

    (PRINT TITLE)

    SWORN TO AND SUBSCRIBED BEFORE ME, THIS THE_______________DAY OF_______________ , 20 _______________ .

    _______________

    NOTARY PUBLIC

    NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED THE PAYMENT, SIXTY (60) DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM OF LIEN BEFORE THE EXPIRATION OF THE SIXTY-DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER SECTION 85-7-419, MISSISSIPPI CODE OF 1972.

  2. The following form is the Waiver and Release Upon Final Payment form referred to in Section 85-7-419:

    WAIVER AND RELEASE UPON FINAL PAYMENT

    STATE OF MISSISSIPPI

    COUNTY OF_______________

    THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY_______________(NAME OF CONTRACTOR) TO FURNISH_______________(DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS_______________(TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF_______________ , COUNTY OF_______________ , AND IS OWNED BY_______________(NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:

    (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)

    UPON THE RECEIPT OF THE SUM OF $ _______________ , THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY.

    _______________

    SIGNATURE

    BY:_______________

    (PRINT NAME)

    ITS:_______________

    (PRINT TITLE)

    SWORN TO AND SUBSCRIBED BEFORE ME, THIS THE_______________DAY OF_______________ , 20 _______________ .

    _______________

    NOTARY PUBLIC

    NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED THE PAYMENT, SIXTY (60) DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM OF LIEN BEFORE THE EXPIRATION OF THE SIXTY-DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER SECTION 85-7-419, MISSISSIPPI CODE OF 1972.

    _______________

    SIGNATURE

    BY:_______________

    (PRINT NAME)

    ITS:_______________

    (PRINT TITLE)

    SWORN TO AND SUBSCRIBED BEFORE ME, THIS THE_______________DAY OF_______________ , 20 _______________ .

    _______________

    NOTARY PUBLIC

  3. The following form is the Affidavit of Nonpayment referred to in Section 85-7-419:

    AFFIDAVIT OF NONPAYMENT

    STATE OF MISSISSIPPI

    COUNTY OF_______________

    THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY_______________(NAME OF CONTRACTOR) TO FURNISH_______________(DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS_______________(TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF_______________ , COUNTY OF_______________ , AND IS OWNED BY_______________(NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:

    (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)

    PURSUANT TO SECTION 85-7-419 THE UNDERSIGNED EXECUTED A LIEN WAIVER AND RELEASE WITH RESPECT TO THIS PROPERTY DATED_______________ ,_______________ . THE AMOUNT SET FORTH IN THE WAIVER AND RELEASE ($ _______________ ) HAS NOT BEEN PAID, AND THE UNDERSIGNED HEREBY GIVES NOTICE OF THE NONPAYMENT.

    THE ABOVE FACTS ARE SWORN TRUE AND CORRECT BY THE UNDERSIGNED.

    _______________

    SIGNATURE

    BY:_______________

    (PRINT NAME)

    ITS:_______________

    (PRINT TITLE)

    SWORN TO AND SUBSCRIBED BEFORE ME, THIS THE_______________DAY OF_______________ , 20 _______________ .

    _______________

    NOTARY PUBLIC

    WITHIN TWO (2) DAYS OF FILING THIS AFFIDAVIT OF NONPAYMENT, THE FILING PARTY SHALL SEND A COPY OF THE AFFIDAVIT BY REGISTERED OR CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY TO THE OWNER OF THE PROPERTY. WHENEVER THE OWNER OF THE PROPERTY IS AN ENTITY ON FILE WITH THE SECRETARY OF STATE’S OFFICE, SENDING A COPY OF THE AFFIDAVIT TO THE COMPANY’S ADDRESS OR THE REGISTERED AGENT’S ADDRESS ON FILE WITH THE SECRETARY OF STATE SHALL BE DEEMED SUFFICIENT.

  4. The following form is the Notice of Contest of Lien form referred to in Section 85-7-423:

    NOTICE OF CONTEST OF LIEN

    STATE OF MISSISSIPPI

    COUNTY OF_______________

    TO: [NAME AND ADDRESS OF LIEN CLAIMANT]

    YOU ARE NOTIFIED THAT THE UNDERSIGNED CONTESTS THE CLAIM OF LIEN FILED BY YOU ON_______________20 _______________ , AND RECORDED IN_______________BOOK_______________ , PAGE_______________OF THE PUBLIC RECORDS OF_______________COUNTY, MISSISSIPPI, AGAINST PROPERTY OWNED BY_______________ , AND THAT THE TIME WITHIN WHICH YOU MAY COMMENCE A PAYMENT ACTION TO ENFORCE YOUR LIEN IS LIMITED TO NINETY (90) DAYS FROM RECEIPT OF THIS NOTICE. THIS_______________DAY OF_______________ , 20 _______________ .

    THIS ABOVE-REFERENCED LIEN WILL EXPIRE AND BE VOID IF YOU DO NOT: (1) COMMENCE A PAYMENT ACTION FOR RECOVERY OF THE AMOUNT OF THE LIEN CLAIM PURSUANT TO SECTION 85-7-405, MISSISSIPPI CODE OF 1972, WITHIN NINETY (90) DAYS FROM RECEIPT OF THIS NOTICE; AND (2) FILE A LIS PENDENS NOTICE OF THE PAYMENT ACTION WITH THE CHANCERY CLERK UPON COMMENCEMENT OF THE PAYMENT ACTION WITH A COPY TO THE LIEN CLAIMANT, OWNER AND CONTRACTOR.

    _______________

    SIGNATURE

    BY:_______________

    (PRINT NAME)

    ITS:_______________

    (PRINT TITLE)

    SWORN TO AND SUBSCRIBED BEFORE ME, THIS THE_______________DAY OF_______________ , 20 _______________ .

    _______________

    NOTARY PUBLIC

  5. The following form is the Pre-Lien Notice form referred to in Section 85-7-409(3):

    PRE-LIEN NOTICE TO OWNER

    TO: [NAME AND ADDRESS OF OWNER]

    TAKE NOTICE THAT THE UNDERSIGNED IS A PERSON HAVING A RIGHT TO A LIEN PURSUANT TO SECTION 85-7-403, MISSISSIPPI CODE OF 1972, WHO DOES NOT HAVE A DIRECT CONTRACT WITH THE OWNER, HAS PROVIDED LABOR, SERVICES OR MATERIALS FOR THE IMPROVEMENT OF PROPERTY COMMONLY KNOWN AS_______________

    (“THE PROPERTY”), FOR THE SUM OF $_______________FOR WHICH THE UNDERSIGNED HAS NOT BEEN PAID, AND INTENDS TO FILE A CLAIM OF SPECIAL LIEN ON THE SUBJECT PROPERTY IN TEN (10) OR MORE DAYS FROM THE DATE HEREOF.

    SO NOTIFIED, THIS THE_______________DAY OF_______________ , 20 _______________ .

    LIEN CLAIMANT:_______________

    (PRINT NAME)

    BY:_______________

    ITS:_______________

    (PRINT TITLE)

HISTORY: Laws, 2014, ch. 487, § 17; Laws, 2015, ch. 348, § 1, eff from and after July 1, 2015.

Editor’s Notes —

Laws of 2014, ch. 487, § 25, provides:

“SECTION 25. The codifier is directed to codify Sections 1 through 17 as a separate article within Title 85, Chapter 7, Mississippi Code of 1972.”

Amendment Notes —

The 2015 amendment in the first and second paragraphs of (4), substituted “NINETY (90)” for “SIXTY (60)”, substituted “FILE A LIS PENDENS NOTICE OF THE PAYMENT ACTION WITH THE CHANCERY CLERK UPON COMMENCEMENT OF THE PAYMENT ACTION WITH A COPY THE LIEN CLAIMANT, OWNER AND CONTRACTOR” for “FILE A NOTICE OF COMMENCEMENT OF PAYMENT ACTION WITHIN THIRTY (30) DAYS OF FILING THE ABOVE-REFERENCED PAYMENT ACTION” at the end of the last paragraph in (4).

Article 23. Commercial Real Estate Broker Lien Act.

§ 85-7-501. Short title.

This article shall be known and may be cited as the “Commercial Real Estate Broker Lien Act.”

HISTORY: Laws, 2014, ch. 522, § 1; reenacted without change, Laws, 2017, ch. 348, § 1, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-503. Definitions.

As used in this article, the following terms have the following meanings:

“Broker” means a real estate broker licensed pursuant to Section 73-35-3(1).

“Broker services” means services for which a license issued by the Mississippi Real Estate Commission is required under Section 73-35-1 et seq.

“Commercial real estate” means any real property or any and every interest or estate in land, including leaseholds, timeshares and condominiums, whether corporeal or incorporeal, freehold or nonfreehold, but excluding oil, gas or mineral leases and any other mineral leasehold, mineral estate or mineral interest of any nature whatsoever, which at the time the property or interest is made the subject of an agreement for broker services:

Is lawfully used primarily for sales, office, research, institutional, warehouse, manufacturing, industrial or mining purposes or for multifamily residential purposes involving five (5) or more dwelling units; or

May lawfully be used for any of the purposes listed in this paragraph (c) by a duly enacted zoning ordinance or which is the subject of an official application or petition to amend the applicable zoning ordinance to permit any of the uses listed in this paragraph (c) which is under consideration by the government agency with authority to approve the amendment; or

Is in good faith intended to be immediately used for any of the purposes listed in this paragraph (c) by the parties to any contract, lease, option or offer to make any contract, lease, or option.

“Compensation” means any compensation that is due a broker for performance of broker services.

“Lien claimant” means a broker claiming a lien under this article.

“Owner” means the owner of record of any interest in commercial real estate.

HISTORY: Laws, 2014, ch. 522, § 2; Laws, 2015, ch. 327, § 1; reenacted without change, Laws, 2017, ch. 348, § 2, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2015 amendment inserted “or for multifamily residential purposes” in (c)(i).

The 2017 amendment reenacted the section without change.

§ 85-7-505. Commercial real estate lien.

  1. A broker shall have a lien upon commercial real estate in the amount that the broker is due under a written agreement for broker services signed by the owner or signed by the owner’s duly authorized agent, if:
    1. The broker has performed under the provisions of the agreement;
    2. The written agreement for broker services clearly sets forth the broker’s duties to the owner; and
    3. The written agreement for broker services sets forth the conditions upon which the compensation shall be earned and the amount of the compensation.
  2. The lien under this section shall be available only to the broker named in the instrument signed by the owner or the owner’s duly authorized agent.
  3. A broker’s lien is not valid or enforceable against a grantee or purchaser of an interest in the commercial real estate conveyed by the person owing the compensation if the grantee or purchaser is taking the property without existing tenants or leases covered by a written agreement for broker services if the deed or instrument transferring the interest is recorded before the broker’s notice of lien is recorded.

HISTORY: Laws, 2014, ch. 522, § 3; reenacted without change, Laws, 2017, ch. 348, § 3, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-507. When lien attaches to commercial real estate.

A lien authorized by this article attaches to the commercial real estate only when the lien claimant files a timely notice of the lien in the office of the chancery clerk in the county in which the commercial real estate is located. A notice of lien is timely if it is filed after the claimant’s performance under the written agreement for broker services and before the conveyance or transfer of the commercial real estate that is the subject of the lien, except in cases where payments of compensation are due in installments or upon renewal. When payment of compensation to a broker is due in installments or upon renewal under the written agreement for broker services, a portion of which is due or may become due after the conveyance or transfer of the commercial real estate, a single claim for a lien filed before transfer or conveyance of the commercial real estate claiming all compensation due in installments or upon renewal shall be valid and enforceable for a period of one (1) year from the date of filing as it pertains to payments due after the transfer or conveyance; however, as payments or partial payments of compensation are received, the broker shall provide partial releases for those payments, thereby reducing the amount due the broker under the broker’s lien. The notice of single claim for a lien may be renewed for a period of one (1) year by the filing of a renewal notice meeting the requirements of this article before the expiration of the expiring notice, and may be likewise renewed from year to year so long as installments of compensation or renewal compensation are due. Notwithstanding any notice of single claim for a lien filed, when payment of compensation to a broker is due in installments or contingent upon renewals under the written agreement for broker services, a portion of which is or would be due after the conveyance or transfer of the commercial real estate, any notice of lien for those payments due or becoming due after the transfer or conveyance may be recorded after the transfer or conveyance of the commercial real estate and within ninety (90) days of the date on which the payment is due; in that case the lien shall be effective as a lien against the transferee’s interest in the commercial real estate as of the date filed and, in the case of a lease or transfer of a nonfreehold interest, the lien shall be effective as a lien against the owner’s interest in the commercial real estate as of the date filed.

HISTORY: Laws, 2014, ch. 522, § 4; reenacted without change, Laws, 2017, ch. 348, § 4, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-509. Lien notice, content.

  1. A lien notice under this article shall be signed by the lien claimant and shall contain an attestation by the lien claimant that the information contained in the notice is true and accurate to the best of the lien claimant’s knowledge and belief.
  2. The lien notice shall include all of the following information:
    1. The name of the lien claimant;
    2. The name of the owner;
    3. A description of the commercial real estate upon which the lien is being claimed;
    4. The amount for which the lien is claimed and whether the amount is due in installments; and
    5. The claimant’s grounds for the lien, including a reference to the written agreement for broker services that is the basis for the lien. It is not necessary that the written agreement for broker services be attached to the notice.
  3. The chancery clerk shall index properly filed liens in the “Notice of Construction Liens” record maintained in his office as provided under Section 85-7-133.

HISTORY: Laws, 2014, ch. 522, § 5; reenacted without change, Laws, 2017, ch. 348, § 5, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-511. Lien claimant to mail copy of notice of lien to owner(s) by certified mail.

Any lien claimant who files a lien on commercial real estate under the provisions of this article shall mail a copy of the notice of the lien to the owner(s) of the commercial real estate by certified mail, return receipt requested, or shall serve a copy of the notice of the lien in accordance with any of the provisions for service of process set forth in the Mississippi Rules of Civil Procedure, as amended from time to time. The lien claimant shall file proof of service with the chancery clerk. The lien is void if the lien claimant does not file and serve the lien as provided in this section.

HISTORY: Laws, 2014, ch. 522, § 6; reenacted without change, Laws, 2017, ch. 348, § 6, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-513. Enforcing lien.

A lien claimant may bring suit to enforce a lien that attaches under the provisions of this article in any court of competent jurisdiction in the county where the commercial real estate is located. The lien claimant shall begin proceedings within one (1) year after filing the notice of lien, and failure to begin proceedings within the one (1) year shall extinguish the lien. If a claim is based upon an option to acquire an interest in commercial real estate, the lien claimant shall begin proceedings within one (1) year of the option to purchase being exercised. A claim for the same lien extinguished under this section may not be asserted in any later proceeding. A lender shall not be made a party to any suit to enforce a lien under this article unless the lender has willfully caused the nonpayment of the compensation giving rise to the lien.

HISTORY: Laws, 2014, ch. 522, § 7; reenacted without change, Laws, 2017, ch. 348, § 7, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-515. Complaint; content; parties’ foreclosure action; procedure.

  1. A complaint filed under the provisions of this article shall contain all of the following:
    1. A statement of the terms of the written agreement for broker services on which the lien is based or a copy of the written contract or agreement;
    2. The date when the written agreement for broker services was made;
    3. A description of the services performed;
    4. The amount due and unpaid;
    5. A description of the property that is subject to the lien; and
    6. Any other facts necessary for a full understanding of the rights of the parties.
  2. The plaintiff shall file the action against all parties that have an interest of record in the commercial real estate; provided that a lender shall not be made a party to any suit to enforce a lien under this article unless the lender has willfully caused the nonpayment of the compensation giving rise to the lien. A foreclosure action for a lien claimed under this article shall be brought under the provisions of this section.
  3. Upon filing a complaint, the plaintiff shall file with the chancery clerk of each county where the commercial real estate, or any part thereof, is situated a lis pendens notice in accordance with Section 11-47-3.

HISTORY: Laws, 2014, ch. 522, § 8; reenacted without change, Laws, 2017, ch. 348, § 8, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-517. When lien claim release or satisfaction to be filed; extinguishment on certain conditions.

If a notice of lien has been filed with the chancery clerk and the claim has been paid in full or in part, or if a condition occurs that would preclude the lien claimant from receiving compensation, in whole or in part, under the terms of the written agreement for broker services on which the lien is based, the lien claimant shall promptly, and in no event more than thirty (30) days after a properly served written demand of the owner, lienee, or other authorized agent, file with the chancery clerk and serve upon the owner(s) of record a written release, partial release or satisfaction of the lien. If a lien claimant fails to file a suit to enforce the lien within the time prescribed by this article or fails to file an answer in a pending suit to enforce a lien within thirty (30) days after a properly served written demand of the owner, lienee, or other authorized agent, the lien shall be extinguished. Service of the demand shall be by registered or certified mail, return receipt requested, or by personal service under the Mississippi Rules of Civil Procedure, as amended from time to time. The claimant shall promptly file proof of properly served written demand with the chancery clerk. The provisions of this section shall not extend to any other deadline provided by law for the filing of any pleadings or for the foreclosure of any lien governed by this article.

HISTORY: Laws, 2014, ch. 522, § 9; reenacted without change, Laws, 2017, ch. 348, § 9, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-519. Cost of proceeding to be paid by nonprevailing party.

The costs of any proceeding brought to enforce a lien filed under this article, including reasonable attorneys’ fees and prejudgment interest due to the prevailing party, shall be paid by the nonprevailing party or parties. If more than one (1) party is responsible for costs, fees and prejudgment interest, the costs, fees and prejudgment interest shall be equitably apportioned by the court among the responsible parties.

HISTORY: Laws, 2014, ch. 522, § 10; reenacted without change, Laws, 2017, ch. 348, § 10, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-521. Discharge of lien.

Unless an alternative procedure is available and is acceptable to the transferee in a real estate transaction, any claim of lien on commercial real estate filed under this article may be discharged by any of the following methods:

The lien claimant of record, the claimant’s lawful agent, or the claimant’s duly authorized attorney-in-fact, in the presence of the chancery clerk or a notary public, may acknowledge in writing the satisfaction of the claim of lien on the commercial real estate indebtedness and file the same with the chancery clerk, after which the chancery clerk shall enter on the record of the claim of lien on the commercial real estate the acknowledgment of satisfaction.

The owner may exhibit an instrument of satisfaction signed and acknowledged by the lien claimant of record in the presence of the chancery clerk or a notary public, which instrument states that the claim of lien on the commercial real estate indebtedness has been paid or satisfied, after which the chancery clerk shall cancel the claim of lien on the commercial real estate by entry of satisfaction on the record of the claim of lien on the commercial real estate.

By failure to enforce the claim of lien on the commercial real estate within the time prescribed by this article.

By filing in the office of the chancery clerk the original or attested copy of a judgment or decree of a court of competent jurisdiction showing that the action by the claimant to enforce the claim of lien on the commercial real estate has been dismissed or finally determined adversely to the claimant.

Whenever funds in an amount equal to one hundred twenty-five percent (125%) of the amount of the claim of lien on the commercial real estate are deposited with the chancery clerk to be applied to any payment finally determined to be due, after which the chancery clerk shall cancel the claim of lien on the commercial real estate. Thereafter, the lien of the claimant shall remain in place and be fully enforceable as to the funds deposited with the chancery clerk, but the lien upon the commercial real property shall be deemed released.

Whenever a corporate surety bond, in an amount equal to one hundred twenty-five percent (125%) of the amount of the claim of lien on the commercial real estate and conditioned upon the payment of the amount finally determined to be due in satisfaction of the claim of lien on the commercial real estate is deposited with the chancery clerk, after which the chancery clerk shall cancel the claim of lien on the commercial real estate. Thereafter, the lien of the claimant shall remain in place and be fully enforceable as to the funds deposited with the chancery clerk, but the lien upon the commercial real property shall be deemed released.

By failure to file a written release or satisfaction of a lien when required by this article or to timely file or take other action required by this article.

HISTORY: Laws, 2014, ch. 522, § 11; reenacted without change, Laws, 2017, ch. 348, § 11, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-523. Remedy for lien wrongly filed.

Any broker who falsely and maliciously files or causes to be filed a notice of lien under this article that brings in question or disparages the title to property may be held liable in a civil action for damages, in which case damages shall be recoverable up to two (2) times the amount of monetary damages caused by the broker’s false and malicious acts, in addition to any other damages.

HISTORY: Laws, 2014, ch. 522, § 12; reenacted without change, Laws, 2017, ch. 348, § 12, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-525. Priority of deeds of trust or mortgages, tax liens and other liens.

All deeds of trust or mortgages, all purchase money mortgages and all liens for ad valorem taxes, regardless of when recorded, and all other liens afforded priority by law or recorded before the recording of the broker’s lien provided by this article shall have priority over the broker’s lien.

HISTORY: Laws, 2014, ch. 522, § 13; reenacted without change, Laws, 2017, ch. 348, § 13, eff from and after July 1, 2017.

Editor’s Notes —

Laws of 2014, ch. 522, § 15, provides:

“SECTION 15. This act shall take effect and be in force from and after July 1, 2014, and applies to written agreements signed by the owner of commercial real estate or the owner’s duly authorized agent on or after that date.”

Amendment Notes —

The 2017 amendment reenacted the section without change.

§ 85-7-527. Repealed.

Repealed by Laws of 2017, ch. 348, § 14, effective July 1, 2017.

§85-7-527. [Laws, 2014, ch. 522, § 14, eff from and after July 1, 2014.]

Editor’s Notes —

Former §85-7-527 was the repealer for §§85-7-501 through85-7-527, effective July 1, 2017.

Chapter 8. Uniform Federal Lien Registration Act

§ 85-8-1. Short title.

This chapter may be cited as the Uniform Federal Lien Registration Act.

HISTORY: Laws, 1989, ch. 515, § 1, eff from and after January 1, 1990.

Comparable Laws from other States —

California: Cal Code Civ Proc § 2107 et seq.

Colorado: C.R.S. 38-25-101 et seq.

Illinois: 770 ILCS 110/1 et seq.

Maine: 33 M.R.S. § 1901 et seq.

Maryland: Md. REAL PROPERTY Code Ann. § 3-401 et seq. (2011)

Michigan: MCLS § 211.661 et seq. (2011).

Montana: Mont. Code Anno., §71-3-201 et seq. (2010)

Nebraska: R.R.S. Neb. § 52-1001 et seq. (2010)

New Hampshire: RSA 454-B:7 (2011)

New Mexico: N.M. Stat. Ann. §48-1-1 et seq. (2010)

Nevada: Nev. Rev. Stat. Ann. § 108.825 et seq.

North Dakota: N.D. Cent. Code, §35-29-01 et seq. (2011).

Oklahoma: 68 Okl. St. § 3401 et seq. (2011)

Pennsylvania: 74 P.S. § 157-1 et seq.

Virginia: Va. Code Ann. § 55-142.1 et seq. (2011).

Washington: Rev. Code Wash. (ARCW) § 60.68.005 et seq.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

§ 85-8-3. Application; exception.

This chapter applies only to federal tax liens and to other federal liens notices and to other federal liens notices of which under any Act of Congress or any regulation adopted pursuant thereto are required or permitted to be filed in the same manner as notices of federal tax liens. This chapter shall not apply to security interests governed by the provisions of the Uniform Commercial Code-Secured Transactions.

HISTORY: Laws, 1989, ch. 515, § 2, eff from and after January 1, 1990.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

§ 85-8-5. Notice of lien; filing.

  1. Notices of liens, certificates and other notices affecting federal tax liens or other federal liens must be filed in accordance with this chapter.
  2. Notices of liens upon real property for obligations payable to the United States and certificates and notices affecting the liens shall be filed in the office of the chancery clerk of the county in which the real property subject to a federal lien is situated.
  3. Notices of federal liens upon personal property, whether tangible or intangible, for obligations payable to the United States and certificates of notices affecting the liens shall be filed as follows:
    1. If the person against whose interest the lien applies is a corporation or a partnership whose principal executive office is in the state, as these entities are defined in the Internal Revenue laws of the United States, in the office of the Secretary of State.
    2. If the person against whose interest the lien applies is a trust that is not covered by paragraph (a) of this subsection, in the office of the Secretary of State.
    3. If the person against whose interest the lien applies is the estate of a decedent, in the office of the Secretary of State.
    4. In all other cases in the office of the chancery clerk of the county where the owner resides at the time of filing of the notice of lien.

HISTORY: Laws, 1989, ch. 515, § 3, eff from and after January 1, 1990.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

§ 85-8-7. Certification of notice of lien.

Certification of notices of liens, certificates or other notices affecting federal liens by the Secretary of the Treasury of the United States or his delegate or by any official or entity of the United States responsible for filing or certify notice of any other lien, entitles them to be filed and no other attestation, certification or acknowledgment is necessary.

HISTORY: Laws, 1989, ch. 515, § 4, eff from and after January 1, 1990.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

§ 85-8-9. Filing notice; duties and responsibilities.

  1. If a notice of federal lien, a refiling of a notice of federal lien, or a notice of revocation of any certificate described in subsection (2) of this section is presented to the filing officer who is:
    1. The Secretary of State, he shall cause the notice to be marked, held and indexed in accordance with the provisions of Section 75-9-519, Mississippi Code of 1972, of the Uniform Commercial Code as if the notice were a financing statement within the meaning of that code; or
    2. Chancery clerk, he shall endorse thereon his identification and the date and time of receipt and forthwith file it alphabetically or enter it in an alphabetical index showing the name and address of the person named in the notice, the date and time of receipt, the title and address of the official party certifying the lien, and the total amount appearing on the notice of lien.
  2. If a certificate of release, nonattachment, discharge or subordination of any lien is presented to the Secretary of State for filing he shall:
    1. Cause a certificate of release or nonattachment to be marked, held and indexed as if the certificate were a termination statement within the meaning of the Uniform Commercial Code, but the notice of lien to which the certificate relates may not be removed from the files; and
    2. Cause a certificate of discharge or subordination to be held, marked and indexed as if the certificate were a release of collateral within the meaning of the Uniform Commercial Code.
  3. If a refiled notice of federal lien referred to in subsection (1) of this section or any of the certificates or notices referred to in subsection (2) of this section is presented for filing with the chancery clerk, he shall permanently attach the refiled notice or the certificate to the original notice of lien and enter the refiled notice of the certificate with the date of filing in any alphabetical lien index on the line where the original notice of lien is entered.
  4. Upon request of any person, the filing officer shall issue his certificate showing whether there is on file, on the date and hour stated therein, any notice of lien or certificate or notice affecting any lien, filed under this act, naming a particular person, and if a notice or certificate is on file, giving the date and hour of its filing. The fee for a certificate is Five Dollars ($5.00). Upon request the filing officer shall furnish a copy of any notice of federal lien or notice or certificate affecting a federal lien for a fee of Two Dollars ($2.00) per page.

HISTORY: Laws, 1989, ch. 515, § 5; Laws, 1990, ch. 373, § 1; Laws, 2001, ch. 495, § 31, eff from and after Jan. 1, 2002.

Amendment Notes —

The 2001 amendment, effective January 1, 2002, substituted “Section 75-9-501” for “Section 75-9-403” in (1)(a).

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

§ 85-8-11. Duties of chancery clerk.

Chancery clerks with whom notices of federal liens, certificates and notices affecting such liens have been filed prior to January 1, 1990, shall, after that date, continue to maintain records containing such notices and certificates filed prior to January 1, 1990.

HISTORY: Laws, 1989, ch. 515, § 6; Laws, 1990, ch. 373, § 2, eff from and after passage (approved March 13, 1990).

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

§ 85-8-13. Fees.

  1. The fee for filing and indexing each notice of lien or certificate or notice affecting the lien in the Office of the Secretary of State is:
    1. For a lien on real estate. . . . .$ 5.00
    2. For a lien on personal property. . . . .$ 5.00
    3. For a certificate of discharge or subordination. . . . .$ 5.00
    4. For all other notices, including a certificate of release or nonattachment. . . . .$ 5.00
  2. The fee for filing and indexing each notice of lien or certificate or notice affecting the lien in the office of the chancery clerk is:
    1. For a lien on real estate. . . . .$ 10.00
    2. For a lien on personal property. . . . .$ 10.00
    3. For a certificate of discharge or subordination. . . . .$ 10.00
    4. For all other notices, including a certificate of release or nonattachment. . . . .$ 10.00
  3. The appropriate officer shall bill the district directors of Internal Revenue or other appropriate federal officials on a monthly basis for fees for documents filed by them.

HISTORY: Laws, 1989, ch. 515, § 7; Laws, 2007, ch. 333, § 1, eff July 1, 2007.

Editor’s Notes —

On June 15, 2007, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965 to the amendment of this Section by Laws of 2007, ch. 333, § 1.

Amendment Notes —

The 2007 amendment substituted “$10.00” for “$2.50” in (2)(a), (b) and (c); and substituted “$10.00” for “$1.00” in (2)(d).

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

§ 85-8-15. Interpretation and construction of Chapter.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

HISTORY: Laws, 1989, ch. 515, § 8, eff from and after January 1, 1990.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

Chapter 9. Debt Adjusting or Credit Arranging [Repealed]

§§ 85-9-1 through 85-9-5. Repealed.

Repealed by Laws, 2003, ch. 465, § 17, eff from and after July 1, 2003.

§85-9-1. [Codes, 1942, § 306-01; Laws, 1971, ch. 302, § 1, eff from and after July 1, 1971.]

§85-9-3. [Codes, 1942, § 306-02; Laws, 1971, ch. 302, § 2, eff from and after July 1, 1971.]

§85-9-5. [Codes, 1942, § 306-03; Laws, 1971, ch. 302, § 3; Laws, 1989, ch. 450, § 1; Laws, 1991, ch. 507, § 1, eff from and after passage (approved April 5, 1991).]

Editor’s Notes —

Former §85-9-1 was entitled: “Definitions.”

Former §85-9-3 was entitled: “Debt adjusting unlawful; penalties.”

Former §85-9-5 was entitled: “Exclusions.”

Chapter 11. Mississippi Uniform State Tax Lien Registration Act

§ 85-11-1. Short title.

This chapter may be cited as the Mississippi Uniform State Tax Lien Registration Act.

HISTORY: Laws, 2014, ch. 412, § 1, eff from and after Jan. 1, 2015.

§ 85-11-3. Purpose and scope of chapter.

  1. The purpose of this chapter is to provide a uniform statewide system for filing notices of tax liens to be maintained by the Department of Revenue that are in favor of or enforced by the Mississippi Department of Revenue.
  2. The scope of this chapter is limited to tax liens in real property and personal property, tangible and intangible, of taxpayers or other persons against whom the Mississippi Department of Revenue has liens pursuant to law for unpaid finally determined tax liabilities administered by the Mississippi Department of Revenue.

HISTORY: Laws, 2014, ch. 412, § 2, eff from and after Jan. 1, 2015.

§ 85-11-5. Definitions.

As used in this chapter:

“Commissioner” means the Commissioner of Revenue of the Mississippi Department of Revenue.

“Debtor” and “judgment debtor” means a taxpayer or other person against whom there is an unpaid finally determined tax liability collectible by the Mississippi Department of Revenue.

“Department” means the Mississippi Department of Revenue.

“Finally determined tax liabilities” means any state tax, fee, penalty, and/or interest owed by a person to the Mississippi Department of Revenue where the assessment of the liability is not subject to any further timely filed administrative or judicial review.

“Last-known address of the debtor” means the address of the debtor appearing on the records of the department at the time the notice of tax lien is enrolled in the Uniform State Tax Lien Registry.

“Person” means an individual, organization or legal entity.

“Uniform State Tax Lien Registry” or “Tax Lien Registry” means the public database maintained by the department wherein tax liens enrolled in favor of and enforced by the department are filed.

HISTORY: Laws, 2014, ch. 412, § 3, eff from and after Jan. 1, 2015.

§ 85-11-7. Notice of tax lien; enrollment in tax lien registry.

  1. If any person refuses to pay any finally determined tax liabilities, the commissioner may enroll in the tax lien registry a notice of tax lien for the finally determined tax liabilities due.
  2. The notice of tax lien file shall include:
    1. The name and last-known address of the debtor;
    2. The name and address of the department;
    3. The tax lien number assigned to the lien by the department; and
    4. The basis for the tax lien, including, but not limited to, the amount owed as of the date of enrollment in the tax lien registry.

HISTORY: Laws, 2014, ch. 412, § 4, eff from and after Jan. 1, 2015.

§ 85-11-9. Perfection of tax lien; tax lien as authority for issuance of writs and warrants.

  1. When a notice of tax lien is enrolled by the department in the tax lien registry, the tax lien is perfected and shall be attached to all of the existing and after-acquired property of the debtor, both real and personal, tangible and intangible, which is located in any and all counties within the State of Mississippi.
  2. The perfected tax lien shall be valid as against mortgagees, pledgees, entrusters, purchasers, judgment creditors, and other persons from the time of enrollment in the tax lien registry.
  3. The amount of the tax lien shall be a debt due the State of Mississippi and shall remain a lien upon all property and rights to property belonging to the debtor, both real and personal, tangible and intangible, which is located in any and all counties within the State of Mississippi, including choses in action, with the same force and like effect as any enrolled judgment of a court of record. Interest and penalty shall accrue on the tax lien at the same rate and with the same restrictions, if any, as specified by statute for the accrual of interest and penalty for the type of tax or taxes for which the tax lien was issued.
  4. The notice of tax lien shall serve as authority for issuance of writs of execution, writs of attachment, writs of garnishment, or other remedial writs. In addition to those writs, the notice of tax lien shall also serve as authority for the commissioner to issue warrants under Sections 27-7-57, 27-13-31 and 27-65-59 for the collection of the tax lien. The tax lien enrolled in the tax lien registry shall constitute the judgment enrolled for the payment of the amount of tax, penalties, and interest referred to in Sections 27-7-57, 27-13-31 and 27-65-59, but the warrant issued for a tax lien enrolled on a tax lien registry shall direct and authorize the special agent to seize and sell the real and personal property found anywhere within this state that belongs to the taxpayer against whom the tax lien was enrolled and not just property in a specific county. Once issued, the execution of the warrants shall be in accordance with Section 27-3-33(4) for the levy on salaries, compensation or other monies due the delinquent taxpayer; Sections 27-7-61 through 27-7-67 in regard to income tax and withholding tax; Sections 27-13-35 through 27-13-41 for franchise tax; and Sections 27-65-63 through 27-65-69 for sales tax and any other tax or fee administered by the department that utilizes the administrative provisions of the sales tax law in the administration of the tax or fee. Under warrants issued for the tax liens enrolled in the tax lien registry, any property, real or personal, within the State of Mississippi is subject to levy under Section 27-3-33(4) if the person that owes the salary, compensation or other monies to the debtor is subject to service of process in this state.

HISTORY: Laws, 2014, ch. 412, § 5, eff from and after Jan. 1, 2015.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in subsection (2) by substituting “pledgees” for “pledges.” The Joint Committee ratified the correction at its July 24, 2014, meeting.

§ 85-11-11. Payments to circuit clerks for service provided to citizens for researching and providing lien information.

Beginning with calendar year 2015 and each year thereafter, on January 15 and July 15 of each year, the department shall pay to the Mississippi circuit clerks an amount equal to half of the yearly average amount paid for the three (3) fiscal year periods ending June 30, 2011, 2012 and 2013, to each county for the enrollment, reenrollment, and/or release of the tax liens under this chapter. The payment shall be used for the service provided to citizens that request assistance from circuit clerks for researching and providing lien information, whether such information is on the lien registry or included in historical documents. The clerks shall report the number of citizens assisted to the department on or before June 30 of each year. The commissioner is authorized to pay the clerks out of funds appropriated by the Legislature to defray expenses of the department.

HISTORY: Laws, 2014, ch. 412, § 6, eff from and after Jan. 1, 2015.

§ 85-11-13. Effect of notice of tax lien; duration of lien; reenrollment of tax lien.

  1. A notice of tax lien shall be a lien upon the debtor’s property located anywhere in the state for a period of seven (7) years from the date of enrollment unless:
    1. It is sooner released by the department; or
    2. The department reenrolls the notice of tax lien before the expiration of the seven (7) years. There shall be no limit upon the number of times that the department may reenroll notices of tax liens.
  2. In the event that a notice of tax lien lapses on the expiration of seven (7) years, the notice of tax lien may, at any time thereafter and in the sole discretion of the department, be reenrolled. A notice of tax lien that is reenrolled pursuant to this subsection shall be fully enforceable as of the date of reenrollment; however, any notice of tax lien that is reenrolled after the lapse of the seven-year period shall lose the priority it had prior to its expiration. There shall be no limit upon the number of times that the department may reenroll notices of tax liens in this manner.
  3. If the department reenrolls a notice of tax lien, the notice of tax lien in regard to that reenrollment shall contain the following information:
    1. The name and last-known address of the debtor;
    2. The name and address of the department;
    3. An indication that the notice of tax lien is for a previously enrolled lien;
    4. The tax lien number assigned to the lien by the department; and
    5. The basis for the tax lien, including, but not limited to, the amount owed as of the date of reenrollment in the tax lien registry.
  4. The reenrollment of a tax lien in the tax lien registry within the seven-year period shall constitute a continuation of the tax lien appearing on the judgment roll of the county as it relates to real and personal property belonging to the debtor in that county; however, the reenrolled tax lien shall attach to all property and all rights to property belonging to the debtor, both real and personal, tangible and intangible, located in any and all counties within the state as of the date of the reenrollment in the tax lien registry. A notice of release of tax lien filed in the tax lien registry shall constitute a release of tax lien within the department, the tax lien registry, and/or the county in which the tax lien was previously enrolled. The information contained on the tax lien registry shall be controlling, and any inconsistencies found between the tax lien registry and the judgment roll of any county shall be superseded by the tax lien registry.

HISTORY: Laws, 2014, ch. 412, § 7, eff from and after Jan. 1, 2015.

§ 85-11-15. Cancellation of notice of tax lien upon discovery of administrative issue.

Within two (2) working days from the date the department discovers an administrative issue in the filing of a notice of tax lien in the tax lien registry, it may cancel a notice of tax lien from the tax lien registry and file a notice of release of the tax lien due to administrative correction. The notice of tax lien shall be treated as though never enrolled.

HISTORY: Laws, 2014, ch. 412, § 8, eff from and after Jan. 1, 2015.

§ 85-11-17. Release of tax lien; enrollment of new tax lien under certain circumstances.

  1. Within fifteen (15) working days from the receipt by the department of full payment of a tax lien enrolled in the tax lien registry, including payment of any additionally accruing interest, penalty, fees and/or costs, the department shall file in the tax lien registry a notice of release of the tax lien being paid.
  2. In the event that a notice or release of tax lien is issued in error by the department and enrolled in the tax lien registry; or the form of payment received by the department is not honored and/or the transfer of payment to the department is not completed for any reason after the notice of release of tax lien is enrolled in the tax lien registry; or the department is required to return and/or turn over the payment received to the taxpayer or other person due to bankruptcy, a court order, or other proceedings after the notice of release of the tax lien issued is enrolled in the tax lien registry; the department, in its sole discretion, may enroll a new tax lien for the finally determined tax liabilities represented in the tax lien for which the tax lien was issued, including any additional accruing interest, penalty and/or fees to the date of the new enrollment. A notice of tax lien that is enrolled pursuant to this provision shall be fully enforceable as of the date of the new enrollment.

HISTORY: Laws, 2014, ch. 412, § 9, eff from and after Jan. 1, 2015.

§ 85-11-19. Tax lien registry; information to be included; certification of records on the tax lien registry; sale of bulk information appearing on tax lien registry; limitation on uses of tax lien registry information.

  1. The department shall maintain notices of tax liens filed in the tax lien registry after January 1, 2015 in its information management system in a form that permits them to be readily accessible in an electronic form through the Internet and to be reduced to printed form. The electronic and printed form shall include the following information:
    1. The name of the taxpayer as judgment debtor;
    2. The name and address of the department;
    3. The tax lien number assigned to the lien by the department;
    4. Whether the enrollment is the first enrollment of the tax lien or a reenrollment of the tax lien;
    5. The amount of the taxes, penalties, interest, and fees indicated due on the notice of tax lien received from the department; and
    6. The date and time of enrollment or reenrollment.
  2. The department shall not charge for the access to information on the enrollment of tax liens by name of judgment debtor or by tax lien number. The department is, however, authorized to charge for the certification of any record or lack of records appearing on the tax lien registry. The department shall determine the process by which such tax lien registry certification can be requested, including a charge for such certification that shall cover at least the cost of providing the certification. The payment of the charge for a tax lien registry certification shall be retained by the department as reimbursement of its cost to provide the certification.
  3. The department is authorized to sell at bulk the information appearing on the tax lien registry. In selling the information, the department shall determine the process by which the information will be sold and the media or method by which it will be available to the purchaser and shall set a price for the information that will at least cover the cost of producing the information. The proceeds from the sale of bulk information shall be retained by the department and used to cover its cost to produce the information sold and to maintain the tax lien registry.
  4. Tax lien registry information, whether accessed by name of judgment debtor or by tax lien number at no charge, through a bulk sale of information or by other means, will not be used for a survey, marketing or solicitation purposes. Survey, marketing or solicitation purpose shall not include any action by the department or its authorized agent to collect a debt represented by a tax lien appearing in the tax lien registry. The department or the Attorney General is hereby authorized to bring an action to enjoin the unlawful use of tax lien registry information for a survey, marketing or solicitation purpose and to recover the cost of such action, including reasonable attorney’s fees.

HISTORY: Laws, 2014, ch. 412, § 10, eff from and after Jan. 1, 2015.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in subsection (4) by substituting “whether accessed” for “whether access.” The Joint Committee ratified the correction at its July 24, 2014, meeting.

§ 85-11-21. Enrollment on tax lien registry of certain unsatisfied tax liens appearing on county judgment rolls.

All tax liens currently enrolled appearing on the judgment rolls of the counties of this state as of January 1, 2015 and which the department does not show as satisfied or as issued in error and which were last enrolled or reenrolled on the judgment rolls within seven (7) years before January 1, 2015 shall be immediately enrolled on the tax lien registry on January 1, 2015, and shall have the force and effect of a judgment on all real and personal property belonging to the debtor anywhere in the state for a duration of seven (7) years effective from the date of the enrollment on the tax lien registry unless and until such time as either the notice of tax lien is released or the department reenrolls the tax lien in the tax lien registry.

HISTORY: Laws, 2014, ch. 412, § 11, eff from and after Jan. 1, 2015.

§ 85-11-23. Rules and regulations.

The department shall have the authority to promulgate rules and regulations, not inconsistent with this chapter, as it may deem necessary to enforce its provisions.

HISTORY: Laws, 2014, ch. 412, § 12, eff from and after Jan. 1, 2015.

Chapter 13. Automated Data Match System for Identifying and Seizing Financial Assets of Obligors Identified by Department of Revenue

§ 85-13-1. Definitions.

As used in this chapter:

“Commissioner” means the Commissioner of Revenue of the Mississippi Department of Revenue.

“Department” means the Mississippi Department of Revenue.

“Finally determined tax liabilities” means any state tax, fee, penalty, and/or interest owed by a person to the department where the assessment of the liability is not subject to any further timely filed administrative or judicial review.

“Person” means a natural person, partnership, limited partnership, corporation, limited liability company, estate, trust, association, joint venture, other legal entity or other group or combination acting as a unit, and includes the plural as well as the singular in number.

“Financial institution” means a bank, trust company, mutual savings bank, savings and loan association or credit union authorized to do business and accept deposits in this state under state or federal law.

“Account” means any money held in the name of an account owner, individually or jointly with another, including, but not limited to, a deposit account, demand account, savings account, negotiable order of withdrawal account, share account, member account, time certificate of deposit, or money market account. “Account” shall not include money held by a financial institution where the obligor is listed in a capacity other than the owner, including, but not limited to, an authorized signer only, custodian, payable on death beneficiary or agent.

“Obligor” means any person against whom a tax judgment for a finally determined tax liability has been enrolled in the Uniform State Tax Lien Registry for which collection of the tax debt is enforceable as provided by law.

“Levy” means a Distress Warrant for the Levy Of Monies Owed To Taxpayer(s) which is an instrument of the commissioner that binds monies held by the garnishee and owed to the obligor.

“Identifying information” means an obligor’s social security number or federal tax identification number.

HISTORY: Laws, 2017, ch. 407, § 1, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in subsection (h) by substituting “binds” for “bind.” The Joint Committee ratified the correction at the August 15, 2017, meeting of the Committee.

§ 85-13-3. Commissioner to develop, maintain and operate automated data match system; purpose; procedure; review of information to determine if department should serve levy to financial institution.

  1. The commissioner shall develop, maintain and operate an automated data match system for the purpose of identifying and seizing the financial assets of obligors as identified by the department.
  2. The commissioner may provide financial institutions a quarterly, electronic inquiry file containing names and identifying information of obligors. Within thirty (30) days of receipt of the inquiry file, the financial institution agreeing to use the data match system shall match the file against its own records for the purpose of identifying whether an account for an obligor is held by the financial institution and notify the department of its findings. When a match is identified, the financial institution shall provide the department the names and identifying numbers on record for the accounts, account numbers, and the account balances as of the date of response back to the department.
  3. A financial institution may request an extension of time to file the information required. Extensions of time are not automatically granted and the reporting institution must demonstrate good cause for requesting the extension. An extension of time for filing the required information may be granted if the request for extension is filed with the commissioner by the date on which the reports are due.
  4. Upon receiving the information from the financial institution and pursuant to the provisions of Section 27-3-33, the commissioner shall review such account information to determine if the department should serve a levy to the financial institution. The levy shall be served either by mail or by delivery by an agent of the commissioner. Not more than twenty-five (25) levies per day shall be served on a financial institution that participated in the data match system. The levy shall require the financial institution to encumber or surrender assets held by the institution on behalf of the obligor. For a financial institution participating in the data match program, the answer shall be made at any time within thirty (30) days after the service of the levy in the form and manner determined by the commissioner. Any amount encumbered and forwarded by the financial institution under this chapter shall not exceed the amount of the warrant.
  5. The financial institution agreeing to use the data match system shall be held to account for only the funds on deposit between the time of service of the levy and the time of its answer, and shall have no obligation to account for additional deposits accruing after the time of its answer to the department. The financial institution may serve its answer within a reasonable time not to exceed thirty (30) days and shall not be held to account for any indebtedness that arises subsequent to service of its answer or property that may come into its hands subsequent to the service of the levy.
  6. The commissioner may develop and provide a system wherein the levy may be delivered and responded to electronically by a financial institution, and the response may include, but shall not require, the electronic transfer of funds.
  7. The commissioner shall adopt a regulation establishing the procedures and requirements for conducting automated data matches with financial institutions pursuant to this chapter as soon as practicable after July 1, 2017.

HISTORY: Laws, 2017, ch. 407, § 2, eff from and after July 1, 2017.

§ 85-13-5. Financial institution’s use of certain existing data match systems; immunity from liability; disclosure of certain information; violation by financial institution or employee.

  1. If a financial institution has a current data match system used in compliance with the child support data match system provided for in Section 43-19-48, the financial institution may use that system to comply with the provisions of this chapter. The department shall not require a financial institution to change the file format established with the Department of Human Services in order to comply with this chapter.
  2. A financial institution, including its directors, officers, employees, attorneys, accountants or other agents, is immune from any liability under any law or regulation to any person for the disclosure of information pursuant to this chapter and for the encumbrance, seizure, or surrender of any assets held by the financial institution in response to a levy issued by the department. A financial institution is not liable for any action taken in good faith to comply with the requirements of this section.
  3. Except as otherwise provided in this subsection, a financial institution furnishing a report or providing information to the commissioner is prohibited from disclosing to a depositor or an account holder that the name of the person has been received from or furnished to the commissioner; however, financial institutions may, but are not required to, disclose to their depositors or account holders that the department has the authority to request and receive certain identifying information provided for under this chapter for state tax collection purposes. Financial institutions may, but are not required to, notify a depositor of account holder of the receipt of a levy and imposition of a hold on the depositor’s or holder’s account.
  4. An authorized agent transmitting data electronically on behalf of financial institutions is subject to the same terms, conditions, and confidentiality provisions that apply to such institutions, as set forth in this chapter.
  5. If a financial institution or any employee of the financial institution willfully violates the provisions of this chapter, the financial institution is liable for the lesser of the amount in the account of the depositor or account holder on the date of submittal of the answer by the financial institution or the dollar amount listed on the levy.
  6. A financial institution may not disclose any information contained in a request for information by the commissioner except to authorized employees, agents or attorneys of the financial institution engaged in complying with the reporting requirements of this chapter or to authorized employees of the department. Employees of the financial institution may use the information only as required in performing their duties and may not otherwise copy, reproduce, retain, or store any information except as instructed in writing by the commissioner. Any electronic media files or other information acquired by the financial institutions from the commissioner will remain the property of the department and must be returned to the commissioner at the time the information reports are due, or at any other time designated by the commissioner.
  7. The department and the financial institution shall not be liable for any applicable early withdrawal penalties and/or any nonsufficient funds (NSF) fees on the obligor’s account(s).
  8. Notwithstanding any other law or rule to the contrary, the financial institution participating in the data match system may recover the costs associated with responding to a levy served upon it from the account of the depositor, per contractual agreement, and shall deduct this amount from the account of the depositor prior to transfer to the department.
  9. To support a data match, the department may disclose certain information relating to taxpayers against whom the department has filed a lien. The information includes the name and address of the taxpayer, the amount of the lien, and the person’s identification numbers, including the social security number and/or the Employers Identification Number (EIN).
  10. The department may use the information received from a financial institution under this chapter only for the purpose of enforcing the collection of taxes, fees, penalties and/or interest administered by the department. The department shall keep all information received from the financial institutions pursuant to this chapter confidential, and any employee, agent, or representative of the department is prohibited from disclosing that information to any other third party.

HISTORY: Laws, 2017, ch. 407, § 3, eff from and after July 1, 2017.