Moseley v. Larson

86 Miss. 288 | Miss. | 1905

Oox, J.,

delivered the opinion of the court.

The facts averred in appellee’s original bill and reiterated in her cross-bill, which are confessed by the demurrer, show the following: (1) The separation of Louise Larson, appellee, complainant in the original bill, and defendant, John Larson, being husband and wife, because of the morbid jealousy of defendant, Larson, and his insane delusions touching the character and conduct of his said wife, and without fault on part of complainant. (2) A conveyance by defendant, John Larson, to defendants, Moseley and Murphy, of the family homestead, worth $4,000, for a consideration of $500, made while defendant, John Larson, was so living apart from complainant, Louise Larson, but while the latter was occupying the said homestead,' and made while defendant, Larson, was mentally insane touching the character and conduct of said wife, complainant below and appellee here, and touching their family life, and all duties and obligations connected therewith or relating thereto. (3) An action of ejectment by defendants, Moseley and Murphy, against complainant, Louise Larson, to oust her from the homestead, of which she is now in possession. (4) Repeated efforts by defendant, Larson, in his answer to' complainant’s bill, at the procurement of defendants, Moseley and Murphy, to ratify and confirm to them his conveyance of the said homestead.

On these facts we hold the conveyance of the homestead hy Larson to Moseley and Mnrphy to he void, hecanse — first, Larson was at least partially, and touching all matters connected with his said wife, and all duties and obligations owing to her, non compos, and mentally incapacitated to hind himself hy conveyance of the homestead; second, because the wife did not join in the conveyance; third, because the taking of the conveyance by appellants, under the facts averred in the bill, was a gross fraud upon appellee.

We hold that appellee is entitled to remain in possession of the homestead, free from disturbance, molestation, or annoyance by appellants; that her right to occupy the homestead, while' not an estate, is an exceedingly valuable privilege, highly favored by the legislation of the state, in pursuance of an enlightened and most beneficent public policy, and not to be destroyed or impaired by a narrow or strained construction; that the jurisdiction of a court of equity may be successfully invoked in such a case as the one at bar; and that, in order to appellee’s full enjoyment of her rights, she is entitled to have appellants perpetually enjoined from prosecuting their action in ejectment, and to have their pretended deed canceled as a fraud and a menace to her peaceful and undisturbed enjoyment of her rights in the homestead. We further hold, upon the facts averred, that appellee is entitled to suit money and to alimony, pendente lite and permanent, and that the sums allowed for these purposes may be made a lien upon the homestead superior to any claim of appellants for reimbursement, and that appellants’ deed to the homestead be canceled in order that the lien thereon may be made effective.

We cannot assent to the proposition that alimony cannot be allowed because the separation of appellee and her husband, John Larson, was induced by the insanity of the latter and without fault on his part. It was likewise without fault on part of the wife. The insanity of the husband cannot absolve hi-m or his estate from the duty of maintaining the wife; and a bill in chancery for alimony is always an appropriate remedy to secure to the wife this right, as against her husband and his estate, when, without fault on her part, she is left by her husband without provision for her support. Garland v. Garland, 50 Miss., 694; Scott v. Scott, 73 Miss., 575 (19 South. Rep., 589); Bishop’s Mar., Div., and Sep., vol. 1, secs. 1253-1259. Insanity of defendant is no, bar to suit for divorce. Bishop’s Mar., Div., and Sep., vol. 2, secs. 516, 518, 522. We see no valid reason why it should bar a suit for alimony. *

There is no merit in the contention that the bill is multifarious. The several matters litigated are so related to one common subject that one cannot be well determined without the other. All questions raised by the bills and demurrer should be adjudicated in one suit, that complete justice may be done the complainant.

The bill is mantainable in its full scope. The demurrer was rightly overruled.

The decree is affirmed.