Larson v. Larson

• Citation: 33 So. 717,82 Miss. 116
• Court: Mississippi Supreme Court
• Decision Date: 02 March 1903
• Parties: LOUISA LARSON v. JOHN LARSON ET AL

33 So. 717

82 Miss. 116

LOUISA LARSON v. JOHN LARSON ET AL

Supreme Court of Mississippi

March 2, 1903

FROM the chancery court of Harrison county. Hon. STONE DEAVOURS Chancellor.

Mrs Larson, the appellant, was complainant in the court below her husband, John Larson, and his vendees of the homestead appellees, were defendants there.

The bill of complaint showed the marriage of the complainant to the defendant, John, his abandonment of his wife and removal from Mississippi to Minnesota, and further showed all the necessary facts to entitle the wife to recover a personal decree for alimony, but the husband was served with process only by publication in a newspaper under code 1892 § 3421. The bill further charged that the husband had become insane, and that, after his abandonment of the wife and the homestead, he executed a deed to his codefendants purporting to convey his homestead, in which the wife did not join conveying the same for a grossly inadequate sum, not exceeding one-fifth its value, and that the vendees in said deed had begun an action of ejectment against complainant for said homestead.

The bill sought an injunction against the ejectment, the cancellation of the deed, a decree for alimony, and prayed that the decree for alimony, temporary and permanent, be ad-judged a lien on the homestead.

The chancery court, denied all relief, the chancellor delivering a written opinion, holding that the wife had no such interest in the homestead as would enable her to have the deed canceled, citing Thoms v. Thoms, 45 Miss. 263; Massey v. Womble, 69 Miss, 347; s.c. 11 So. 188; Pounds v. Clarke, 70 Miss. 263; s.c. 14 So. 22; Gatti v. Supply Co., 77 Miss. 754; s.c. 27 So. 601; Duncan v. Moore, 67 Miss. 136; s.c. 7 So. 221. The chancellor further found that John Larson, the husband, was insane, and that alimony could not be granted in this proceeding, because of his insanity, and because he had not been personally served with process.

The bill having been dismissed, the complainant appealed to the supreme court.

Affirmed.

Ford & White, for appellant.

The case at bar presents a different state of facts and is different in its legal aspect from any of the cases cited by the learned chancellor in support of his position. While, as a rule, the wife has no vested interest or title to the homestead, where the title is in the husband, this case falls squarely within the rule laid down in Scott v. Scott, 73 Miss. 575. The wife was entitled to a support out of the husband's property, and to that extent she had a property interest in it which would give her standing in a court of equity to protect the title.

There is nothing in either the pleadings or proof to show that Larson was wholly insane, but it is clearly established that his insanity was only partial, and, even had the learned chancellor been correct in the position that a lunatic can only be sued by having a guardian appointed and making the guardian a defendant, that rule would not apply in this case, from the fact that his insanity was only partial, and was not of such nature as to prevent him from making a defense, but, on the other hand, if it had any effect, it would be to cause him to defend more vigorously. But we submit that, even if Larson had been wholly insane complainant could have sued without his having a guardian. 16 Am. & Eng. Enc. Law (2d ed.), 601; Ex parte Northington, 79 Am. Dec., 67 (37 Ala. 496); King v. Robinson, 54 Am. Dec., 614 (33 Maine, 114); Allison v. Taylor, 32 Am. Dec., 68 (6 Danna [Ky.], 87); Maloney v. Dewey, 11 Am. St. Rep., 133 (127 Ill. 395); Stigers v. Bruet, 33 Am. Rep., 317 (50 Md. 214).

The position of the chancellor that Larson was not served with process in this state no decree for alimony could be rendered against him, may be sound so far as it relates to a judgment in personam, but it is undoubtedly unsound insofar as it denies the right to a judgment in rein; for surely no court would hold that a husband, whether wholly sane or not, having valuable property in this state, can abandon his family without cause, and leave them to suffer for the necessaries of life while he lives in affluence in another state upon the income from his property in this state; and because he cannot be served with process in this state the courts are powerless to subject his property to a decree for the support and maintenance of his wife and children. The chancery court has jurisdiction of a bill filed against a nonresident having property here to redress a wrong, even if the damages are unliquidated. Gordon v. Warfield, 74 Miss. 553.

Harper & Potter and Harper & Harper, for appellees.

The bill makes Larson a defendant, and alleges that he is a nonresident of Mississippi. He is...