Colbert v. Henley

Citations

• 64 Miss. 374

Syllabus

<p>1. Chancery Practice. Averments of bill. Effect of failure to deny specifically. Section 1892, Code of 1880, applied.</p> <p>H., a judgment-creditor of C., caused an execution to be levied on a part of a town lot, separated by a fence from the main part. C. filed a bill to enjoin the sale under the execution on the ground that the whole of the lot was not worth more than seventeen hundred dollars, and that it was owned and occupied by complainant as a homestead. H. traversed the allegations of the bill generally, but failed to deny specifically the allegation as to the value of the lot, and contended that the part of the lot levied on was cut off from and not a part of the homestead occupied by C. Evidence was adduced by H. to show that the value of the entire lot was more than two thousand dollars. Held, that such evidence was irrelevant under $ 1892, Code of 1880, which provides that ‘‘ all facts averred in the bill, and not denied by the answer otherwise than by the general traverse, may be taken as admitted.”</p> <p>2. Same. Homestead exemption. Levy on dissevered lot. Value of whole.</p> <p>But even if the defendant’s answer in the case above stated were amended so as to make the evidence referred to competent and it were made a cross-bill, he would not be entitled to any relief based upon such evidence, because his levy was not upon the entire lot with the view of subjecting the excess of its value over two thousand dollars (the amount of a homestead exemption), but upon a part of the lot as severed from the homestead.</p> <p>3. Homestead Exemption. Two houses on same lot. Right of judgment-creditor to subject.</p> <p>A part of a town lot on which is a house, 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 a house, occupied usually as a homestead, cannot be subjected to an execution against' the owner and occupant thereof unless it be shown that the whole is worth more