86 So. 458 | Miss. | 1920
delivered the opinion of the court.
On the 9th day of August, (1910, L. M. Ashley owned certain lands containing one hundred and fifty-four acres, upon Avhich he and his wife resided, it being a homestead upon Avhich they then lived and have continued to live since. On that day L. M. Ashley undertook to sell to R. J. Young the timber , upon a part of this homestead. The contract signed recited a consideration of eight hundred dollars, four hundred dollars cash and four hundred dollars to be paid on the 5th day of December, 1910, and purported to sell all pine timber on the east of lands uoav in cultivation, setting out a description of the lands, and providing that Young is not to cut any of the timber until the note had been paid, and that he Avas to have five years in Avhich to remove the said timber. Subsequently for a consideration L. M. Ashley extended the time on two different occasions. Young entered upon the land and cut timber therefrom. The proof showed the value of the timber cut to approximate one thousand dollars, when he Avas notified not to cut the timber further, and, refusing to abandon his operations, this injunction was sued out by L. M. Ashley and his Avife, praying for an injunction to. prevent the further cutting of timber and for a cancellation of the 'contract for the reason that the Avife had not signed
It is further alleged in the answer that the timber was cut and removed without objection, and that no legal claim against the timber existed in complainants, and charged that the complainants should be required to do equity by returning- to him the pro rata of the purchase price for timber uncut and remaining- on the land. A motion was also filed to strike the name of Mrs. Ashley from the bill as being an improper party. The chancellor made the injunction perpetual, but set off the purchase price against the timber cut, and allowed neither party any money judgment. From which judgment this appeal is prosecuted.
It is abundantly established in the evidence that the ■property constituted the homestead, and that the title to the land was in the husband, L. M. Ashley, and that the wife did not sign the conveyance or contract, and that the complainants occupied the land at the time of the contract and since as a homestead.
Two questions are presented for consideration: One is whether the wife has such a right in a homestead that she may resort to the courts for protection and relief where the husband has undertaken to dispose of the homestead without her joining in the deed and consenting thereto; and, second, whether a court of equity on being applied to
The appellant cites Pounds v. Clarke, 70 Miss. 263, 14 So. 22, and Duncan v. Moore, 67 Miss. 136, 7 So. 221; Deans v. Robertson, 64 Miss. 195, 1 So. 159, and other authorities antedating the 70 Miss. 263, 14 So. 22, on. the proposition that équity will not lend its aid in relieving a party from a contract or obiigation unless and until he pays or offers to pay whatever is equitable under the particular facts under the doctrine of the maxim that “he who seeks equity must do equity.” In Pounds v. Clarke the court held that, although the wife must join in a conveyance of her husband’s homestead, she has no estate therein, and is not a proper party to a bill by him to cancel a trust deed thereon given by him alone, and that he cannot, by joining her as a complainant, avoid the requirement of a chancery court of doing equity by offering to pay. the secured debt. This case, lioAvever, is expressly overruled in McDonald v. Sandford, 88 Miss. 633, 41 So. 369,117 Am. St. Rep. 758, 9 Ann. Cas. 1, which fact no doubt escaped the memory of learned counsel for the appellant. In this case the appellant and his wife filed a bill to cancel a decree of a court which had been obtained against the husband declaring a note to be a mortgage and foreclosing the same. This note contained a clause as follows:
“And to make the above note good, or in case I fail to pay the above specified amount, they are to have the following described lands.”
The decree of the court had appointed a commissioner to sell the land for the satisfaction of the debt, the note being signed by the husband alone. The bill filed charged that this land Avas a homestead at the time the note was given, and at the time the decree Avas rendered, that the Avife knew nothing of the execution of the note by her husband, and nothing of the suit declaring it a mortgage on the homestead, and that her husband was deterred by duress from appearing and defending the former suit. The court below sustained a demurrer to the bill, and on appeal
There are numerous authorities in other states to sustain the wife’s right to file a suit to .protect her right in the homestead, and the case above cited declares her right in this state to resort to the courts to protect her interest. The decision overruling the Pounds Case in 70 Miss. 263, 14 So. 22, is in general terms, but we think the decision necessarily overrules it on both points. The homestead is given not so much for the benefit of the husband as it is for the wife and children. It is designed to protect helpless women and children from the improvident acts of an improvident husband. It is founded in a wise public policy, the state deeming it better that wives and children should have shelter and a place to live than that a creditor should have his debt, unless he secures his debt by procuring the wife’s signature to the contract. The wife has a right to live upon the homestead during the time it is occupied as such without having its value destroyed or depreciated, and to the quiet anct peaceable enjoyment against all aggression from any creditor or other person where she has not conveyed it away. After the husband’s death she has the right to live upon- it during her widowhood, and it cannot be sold without her consent. All contracts seeking to acquire rights in the homestead are void as contracts Avhen not signed by the Avife. The paper containing the writing is nothing. It is mere Avaste páper, and no rights against the homestead can be founded upon such paper.
It would not be seriously argued, we think, that in case the husband should sign a deed in which his AAdfe did not join that the grantee could go upon the homestead, commit trespass, or tear away the buildings, and the wife and husband be remediless unless1-, they could procutre enough money to repay what the husband had received for his void deed.
We think the principle has been fully settled that the maxim that “he who seeks equity must do equity” does not apply to a suit to protect the homestead where there is
“The doctrine that ‘he Avho seeks equity must do equity’ has no application to the case made by ,the record. The homestead Avas exempt, and descended exempt to the heirs of Dozier. It Avould be a mockery of the exemption laAV, and a perversion of the equitable maxim referred to, to hold that the heirs Avere bound to tender, Avith their bill, the debt of their father, although the homestead Avhich descended to them Avas absolutely exempt from any debt . of the father.”
It would be a vain and useless thing to require the Avife’s signature to a conveyance of the homestead if the husband can by his sole contract preclude himself and his Avife from resorting to equity to protect it. Against many persons injunction aaíII be the only effectual relief for the protection of the homestead. The maxim that “he avIio seeks equity must do equity” Avas not designed to overturn the beneficent public policy of the homestead law or to overturn the settled policy of legislative enactments in the furtherance of public Avelfare.
Affirmed.
