70 Miss. 263 | Miss. | 1892
delivered the opinion of the court.
M. L. Pounds, the wife, was neither a necessary nor a proper party to the litigation. She had no interest in the lands, and if, as appears, the husband had undertaken to convey the homestead without the wife’s joining therein, the conveyance may be shown by the grantor to be invalid in any forum in which the question may arise. The attack may be made upon this invalid conveyance by the husband, at law or in equity, and there is neither necessity nor propriety in making the wife a party to litigation concerning lands in which she has no estate or interest.
If the husband elects to invoke the aid of a court of equity rather than resort to a law court, the shadow of the wife’s name, as an unnecessary party to the proceeding, will not absolve him from the operation of the rule which requires him to do equity before asking relief in equity. Though the conveyance is invalid, the appellant must be required to do equity, by paying what the conveyance was designed to secure, before he can have a court of conscience cancel the invalid instrument.
The case is readily distinguishable from that of Massey v. Womble, 69 Miss., 347. In that case, the husband, who had conveyed without the wife’s joinder, was dead, and the wife had succeeded to the headship of the family, and had an estate in common with her children in the premises. She was a necessary and proper party, and she was under no obligation to pay any debt secured by the invalid conveyance..
Affirmed.
