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. 1896).

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).

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).

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).

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).

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.

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).

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).

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.

RESEARCH REFERENCES

Am. Jur.

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

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).

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. Hooks, April 5, 1996, A.G. Op. #96-0163.

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 in part, Southern P. R. Co. v. A. J. Lyon & Co., 54 So. 784 (Miss. 1911), overruled, Southern P. R. Co. v. A. J. Lyon & Co., 99 Miss. 186, 54 So. 728, 1911 Miss. LEXIS 188 (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).

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).

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. Evans, April 26, 1996, A.G. Op. #96-0248.

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).

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. Shepard, July 3, 1991, A.G. Op. #91-0450.

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).

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. Hooks, April 5, 1996, A.G. Op. #96-0163.

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).

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).

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).

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, 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).

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. 1914).

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.

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).

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.

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. Barlow, Sept. 23, 1992, A.G. Op. #92-0639.

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. Schrimpshire, March 30, 2007, A.G. Op. #07-00162, 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. 229 Miss. 687, 91 So. 2d 831.

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. 1907).

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).

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. 1907).

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).

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. 1897).

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. 1897).

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).

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).

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).

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).

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. 1922).

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.

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).

Editor’s Notes —

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

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).

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. 229 Miss. 687, 91 So. 2d 831.

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).

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).

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.

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, 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).

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. 1853).

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).

Editor’s Notes —

Former §85-5-5 related to contribution between joint tort feasors. For comparable provisions, see §85-5-7.

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 did not abuse its discretion in excluding any testimony or evidence that other doctors were dismissed from a medical malpractice lawsuit against a doctor because the jury was still allowed to consider any negligence of the other doctors in rendering its decision. Kronfol v. Johnson, — So.3d —, 2019 Miss. App. LEXIS 183 (Miss. Ct. App. Apr. 30, 2019).

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, 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).

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, 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).

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).

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.

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. 1990).

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.

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).

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.

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.

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.

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).

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.

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).

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).

Cross References —

Lien on watercraft, see §85-7-7.

Salvage of abandoned boats, see §§89-17-1 et seq.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. Legal Forms 2d, Liens § 165:24 (notice of lien and of sale-jeweler’s lien for repairs).

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. Legal Forms 2d, Liens § 165:24 (notice of lien and of sale-jeweler’s lien for repairs).

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, 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. 1903).

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).

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.

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).

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).

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. 1899).

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. 1938).

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. 1933).

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. 1903).

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. 1933).

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.), modified, 142 So. 508 (Miss. 1932).

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.), modified, 142 So. 508 (Miss. 1932).

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).

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gas and Oil § 124 et seq.

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).

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. 1894); Wenger v. First Nat'l Bank, 174 Miss. 311, 164 So. 229, 1935 Miss. LEXIS 71 (Miss. 1935).

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. 1903).

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. 1869).

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. 1903).

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).

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).

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).

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).

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).

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).

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. 1899).

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. 1899).

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.

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

Editor’s Notes —

For repeal of this section see §85-7-317.

Amendment Notes —

The 2016 amendment reenacted the section without change.

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.”

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.”

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.”

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

1. Interpretation.

Chancellor properly interpreted and applied Miss. Code Ann. §85-7-405 to deny a casino’s petition to expunge a subcontractor’s lien where the statute referenced only the date of the lien claimant’s last work performed, and the subcontractor had provided labor, service, and/or material required by the contract and at the casino’s direction within 90 days of the lien’s filing. Land Holdings I, LLC v. GSI Servs., LLC, 265 So.3d 147, 2019 Miss. LEXIS 25 (Miss. 2019).

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.”

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.”

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).

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.”

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.”

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.”

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.”

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.”

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.”

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.”

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.”

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.”

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.”

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).

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.]

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.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

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.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

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.

RESEARCH REFERENCES

Am. Jur.

34 Am. Jur. 2d, Federal Taxation (1989) ¶ 9473.

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.”

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.

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.

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.