Homestead and the Spousal Joinder Requirement
General rule: joinder of a non-titled spouse is required
Where an owner of homestead property is married and living with a spouse, a conveyance, mortgage, deed of trust or other encumbrance on homestead property to a third party must be signed by (i) the non-titled spouse of the owner, or (ii) an attorney in fact for the non-titled spouse, in order to be valid. Miss. Code Ann. § 89-1-29. See also Welborn v. Lowe, 504 So. 2d 205, 207 (Miss. 1987)(holding that a conveyance of homestead without a non-titled spouse joining in the execution of the deed is absolutely void; no subsequent action by the non-titled spouse cures the invalidity of it and in the event, the spouse is required or forced to leave the homestead on account of the misconduct of the titled spouse and is absent at the time of execution of the deed of conveyance, the deed instrument likewise is invalid); See also Craddock v. Brinkley, 671 So. 2d 662 (Miss. 1996).
Failure of the non-titled spouse to join in the execution of the instrument will result in the instrument being null and void. Hughes v. Hahn, 209 Miss. 293, 46 So. 2d 587, 589 (1950). The result of this requirement is to give the non-titled spouse veto power over the sale of homestead property, notwithstanding the fact that the non-titled spouse has no ownership interest in the property. Alexander v. Daniel, 904 So. 2d 172, 179 (Miss. 2005)(citing Scott v. Scott, 73 Miss. 575, 19 So. 589 (1896); and Duncan v. Moore, 67 Miss. 136, 7 So. 221 (1890)).
The Mississippi Title Examination Standards recognize five (5) exceptions to the spousal joinder requirement, but there is a sixth exception! Let’s check them out below:
Exception 1: non-owner occupied property
The first exception to the spousal joinder requirement isn’t really an exception. If the property is not homestead property, that is, when the property is not an owner-occupied residence, then the spousal joinder requirement simply doesn’t apply. The problem is – how do you tell just by looking at the record whether or not the property was homestead at the time of the conveyance or whether the grantor was married. To avoid these questions, I always encourage people to ensure that a deed conveying non-homestead property contains the following recital:
Grantor further represents and covenants that no part of the Property, or of any adjacent land, constitutes Grantor’s homestead under the constitution and statutes of the State of Mississippi.
Including this recital answers the question as to the property’s then-current homestead status. Most underwriters will rely on such a statement unless there is a declaration of homestead covering the property filed of record pursuant to Miss. Code Ann. § 85-3-29 or the property is assessed as the grantor’s homestead.
Exception 2: purchase money mortgages
The most frequently relied upon exception is the exception for purchase money mortgages. A deed of trust given to secure funds used to purchase a homestead is valid without the non-titled spouse’s signature. Jarvis v. Armstrong, 94 Miss. 145 (1909). Likewise, a titled spouse’s deed of trust to secure payment of a debt for money advanced to the titled spouse for the construction of a house converted into a homestead is valid without the non-titled spouse’s signature. Id; See also In re Burks, 421 B.R. 762 (Bankr. N.D. Miss. 2009) (finding a second lien deed of trust invalid where non-titled spouse failed to join the execution thereof and the proceeds were non-purchase money in nature). It should be noted, however, that this exception does not apply where the grantor already owns the property and resides on it at the time the deed of trust is signed. In re Rhymes, No. 0553572ERG, 2008 WL 723975, at *4 (Bankr. S.D. Miss. Mar. 14, 2008).
Given the above, where the proceeds of a loan secured by a deed of trust (i.e., a PMM) are used to purchase an existing residence or to construct a home on vacant land already owned by the borrowing titled spouse, the non-titled spouse may, but is not required, to join in the execution of the deed of trust. For refinances, equity mortgages, construction mortgages and other mortgages that are not purchase-money mortgages, the non-titled spouse’s signature is required on the deed of trust, unless one of the other exceptions apply.
To avoid questions regarding whether or not the deed of trust was a purchase money deed of trust, I always encourage people to ensure that:
- the deed in favor of the grantee/borrower includes the following recital:
The purchase price of this property, or a portion thereof, was paid from a purchase money deed of trust executed simultaneously herewith.
- the deed of trust state on its face that it is a purchase money deed of trust.
Exception 3: inter-spousal conveyances
Another exception exists for inter-spousal conveyances. The joinder of a spouse is not required where one spouse conveys to another spouse his or her interest in homestead property, but any conveyance – whether by deed, mortgage or otherwise – to a third party without the joinder of both spouses is invalid. Ward v. Ward, 517 So. 2d 571, 573 (Miss. 1987); See also Miss. Code Ann. § 89-1-29; See also Williams v. Green, 128 Miss. 446, 454 (Miss. 1922)(recognizing the general rule that “[i]n jurisdictions requiring conveyances or mortgages of homestead property to be executed by both husband and wife, the husband may make a valid conveyance, or according to some decisions, mortgage of the homestead premises to his wife, without her joining.”).
Exception 4: separated spouses, living apart
If a married couple is separated and not living together, and the non-titled spouse voluntarily leaves the homestead with no intent to return, then a conveyance, mortgage, deed of trust or other encumbrance executed thereafter by the titled spouse is valid though not signed by the non-titled spouse. McGehee v. Middleton, 58 So. 2d 16, 17 (Miss. 1952); Etheridge v. Webb, 210 Miss. 729, 749, 50 So. 2d 603, 610 (1951).
This exception is fact-based and must be supported by sufficient evidence to be relied on by Issuing Agents. Sylvester v. Stevens, 191 So. 483 (Miss. 1939) (finding that 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); Lewis v. Ladner, 177 Miss. 473, 172 So. 312 (1937) (finding that abandonment of homestead may be obtained by a free and voluntary separation of the parties); Board of Mayor and Alderman of Town of Booneville v. Clayton, 155 Miss. 428, 124 So. 490 (1929); Philan v. Turner, 1943, 195 Miss. 172, 13 So.2d 819 (1943) (finding the test to be whether ‘the husband was away from the homestead with the mature intention not to return to it”).
Given the above, a non-titled spouse must join in the execution of the conveyance, mortgage, deed of trust or other encumbrance, unless an affidavit of non-homestead executed by both the titled and non-titled spouse is recorded with such instrument, confirming that the non-titled spouse voluntarily left the homestead with no intent to return and currently maintains a separate living arrangements. See Title Examination Standard 15.02.
An affidavit executed by the titled spouse alone is self-serving and is not acceptable for purposes of satisfying the requirements to qualify for this exception. The wrongful ouster of a spouse does not constitute a willful abandonment. Scott v. Scott, 1896, 73 Miss. 575, 19 So. 589.
Because it is impossible to determine at a later date whether or not the titled spouse and non-titled spouse were separated and the non-titled spouse left the homestead with no intent to return at the time of execution, the affidavit by both the titled and non-titled spouse must be filed of record with the conveyance, mortgage, deed of trust or other encumbrance.
For a sample non-homestead affidavit based on separation, see Title Examination Standard Form 21.04 (Sample Form of Affidavit of Non-homestead).
Exception 5: voluntary abandonment
Where a titled spouse acts in good faith to adopt a new homestead and not to deprive the non-titled spouse of any of the non-titled spouse’s homestead rights which the non-titled spouse had when residing in the homestead, the titled spouse may move the family from their homestead, which thereupon loses its character as such, to a new homestead. Biglane v. Rawls, 247 Miss. 226, 234, 153 So. 2d 665, 668 (1963) (“the husband, as head of the family, has the right to select the homestead, and the wife is bound by his selection, if it is made in good faith and not for the purpose of defeating her rights”); See also Grantham v. Ralle, 248 Miss. 364, 376 (1963); Livelar v. Kepner, 244 Miss. 723, 733 (1962). As with the Exception 4 above, this exception is fact-based and must be supported by sufficient evidence to be relied upon.
Given the above, a non-titled spouse must join in the execution of the conveyance, mortgage, deed of trust or other encumbrance, unless an affidavit of non-homestead executed by both the titled and non-titled spouse is recorded with such instrument, confirming that (a) the homestead has been abandoned with no intent to return to it, (b) all personal belongings have been removed from the subject property, (c) a new homestead has been secured and is currently being occupied, and (d) the abandonment of the subject property as homestead property is/was voluntary.
Because it is impossible to determine at a later date whether the homestead was abandoned, an affidavit by both the titled and non-titled spouse should be filed of record with the conveyance, mortgage, deed of trust or other encumbrance.
For a sample non-homestead affidavit based on separation, see Title Examination Standard Form 21.04 (Sample Form of Affidavit of Non-homestead).
Exception 6: adjudicated incompetent
The final exception to the spousal joinder requirement involves a spouse that has been adjudicated incompetent. Miss. Code Ann. § 89-1-29. In that case, the titled spouse must file a petition in the chancery court and allege in the petition the incompetence of the non-titled spouse and the adjudication of incompetence of the non-titled spouse and the facts of the case. Id. The court by decree must authorize and empower the titled spouse to execute a conveyance, mortgage, deed of trust or other encumbrance upon the homestead without the signature of the non-titled spouse. Id.
In this situation, I encourage folks to the use of the following requirement:
The Company requires an order adjudicating the non-titled spouse incompetent and authorizing the titled spouse to execute a conveyance, mortgage, deed of trust or other incumbrance upon the homestead without the signature of the non-titled spouse. At the time the Company is furnished these items, the Company may make additional requirements or exceptions.