| Miss. | Oct 15, 1895
delivered the opinion of the court.
The bill in this cause charges, and the demurrer admits, that the defendant, Scott, without cause or provocation, drove his wife, the complainant, from his home and refused to permit her to return. The first question, therefore, presented is whether the husband could, thereafter, and while the premises
The contention of counsel for the appellants is that the statute defines and limits the conditions within and under which it applies, and, if the conditions, for any reason, cease to exist, the unrestricted power of the husband to convey the homestead is restored. And so it is argued that, since the complainant was not in fact “living with ” her husband when the conveyance was made, it was valid without her joining therein. This construction would bring the husband within what might be justly termed the iniquity of the statute, since it would give him a quasi repealing power, under which, by clubbing his wife from the home, he could free himself from this restraint on alienation. But we cannot think it was ever contemplated by the legislature that the statute should be so construed as to abrogate the maxim that no one can gain a right by his own wrong.
The husband, as the head of the family, has the recognized ■ right to fix its domicile, and so may, in good faith, 'remove from the homestead, which thereupon loses its character as such, and, if the legal title is in him, it may thereafter be conveyed by his deed without the consent of the wife. But the position of head of the family imposes duties and obligations correlative to its rights and powers. The domicile of the husband is the domicile of the wife, and, so long as she does not-willingly withdraw herself therefrom or do any act by which her rights are forfeited, she is entitled to the protection of its shelter. No violence or subterfuge or device of the husband can 'thrust the wife from the protection of the statute nor free him from its restraint. So long as the wife has the right and the will to remain at the home, she is, in our opinion, to
But it is said by counsel for appellant that the wife has no estate in the land, and, therefore, no standing in the court to attack the conveyance. If the bill be considered purely as one for cancellation of the conveyance and a restitution to the home as such, this contention would appear to be sound, for, as we have heretofore decided, the statute gives the wife no property right in the home, but only a veto power upon the right of the husband to convey. Massey v. Womble, 69 Miss., 350.
Although the purpose of the pleader seems to have been to secure only this relief, to which complainant is not entitled, yet the facts stated are sufficient to uphold a prayer for alimony, and the bill contains the prayer for general relief, under which any appropriate relief may be granted.
Alimony may be decreed upon a bill by which no divorce is sought. Garland v. Garland, 50 Miss., 694" court="Miss." date_filed="1874-10-15" href="https://app.midpage.ai/document/garland-v-garland-7984477?utm_source=webapp" opinion_id="7984477">50 Miss., 694; Verner v. Verner, 62 Miss., 260" court="Miss." date_filed="1884-10-15" href="https://app.midpage.ai/document/verner-v-verner-7986142?utm_source=webapp" opinion_id="7986142">62 Miss., 260; McFarland v. McFarland, 64 Miss., 449.
Although the wife may not have any estate in the land, and, therefore, may not be entitled to maintain a bill for the single purpose of vacating the invalid conveyance by the husband of the homestead, her right to alimony out of his estate supplies the interest which enables her to attack the deed in order that the property thereby conveyed may be subjected to her claim.
The decree is therefore affirmed.