Duncan v. Moore

• Decision Date: 20 January 1890
• Court: Mississippi Supreme Court
• Parties: RICHARD DUNCAN v. C. C. MOORE ET AL

7 So. 221

67 Miss. 136

RICHARD DUNCAN v. C. C. MOORE ET AL

Supreme Court of Mississippi

January 20, 1890

FROM the chancery court of the first district of Chickasaw county HON. BAXTER MCFARLAND, Chancellor.

From the agreed statement it appears that Richard Duncan owned a homestead upon which he resided with his family, and gave trust deeds on the same to secure debts to C. C. Moore and others. His wife did not join in these deeds, but afterwards about the time of foreclosure, having the defect in the deeds explained to her by the creditor, Moore, she executed to him a separate deed to the land. She was paid a consideration in money for this by said creditor. The land was worth less than two thousand dollars, and was exempt.

The trust deeds being foreclosed, Moore became the purchaser and received a deed to the land in controversy. These are the facts so far as the defendant Moore is concerned. There were other parties interested in the trust deeds, but it is unnecessary to make any statement as to them.

Afterwards the bill in this case was filed by the appellant, Richard Duncan, who was in possession, and who sought cancellation on the ground that the attempted encumbrance of the homestead without joinder of his wife was void. No tender of the debt was made.

The other facts necessary to an understanding of the case are stated in the opinion of the court.

From a decree dismissing the bill the complainant appealed.

Decree affirmed.

W. G Orr, for appellant.

1. The attempted encumbrance of the homestead by the husband without the joinder of the wife, is void. It is no conveyance, and casts a cloud on the title which a court of equity will remove. Boone on Mortg., §§ 228, 229, note 3; Bank of La. v. Lyon, 52 Miss. 181. Such a conveyance would not take the case out of the statute of frauds. Johnson v. Brook, 31 Miss. 1.

The deed must be the joint act of husband and wife. Boone on Mortg., § 229; Thompson v. Sheppard, 5 So. 334. See Rooney v. Michael, 4 Ib. 421; Smith v. Pearce, Ib. 616; Thompson on Homesteads, § 474. They must not take two bites at the cherry. A mortgage of the homestead signed by the husband alone is not rendered valid by the subsequent death of the wife. Thompson, § 489. See also Cummings v. Busby, 62 Miss. 195.

2. It was not necessary to tender payment of the indebtedness; we do not seek to repudiate the debt, but simply to cancel the invalid incumbrance. Howell v. Bush, 54 Miss. 437.

The homestead is protected for the benefit of the family on grounds of public policy.

Miller & Baskin, for appellee Moore.

1. Appellant's deed is only voidable. If it were void, he would not be entitled to relief, because he does not offer to pay the debt. One who seeks equity must do equity. Deans v. Robertson, 64 Miss. 197.

2. Though a homestead, the property belonged to appellant. He could convey it, subject to the action of his wife as to its disposition. She is the only person who could in any event complain, and she has parted with her right.

The statute does not provide as to the time when the wife's consent is to be given to a conveyance of the homestead. See Smith v, Scherck, 60 Miss. 491.

While we think the decree ought to be affirmed, because of appellant's failure to make any tender of the debt, we trust that the court will pass upon the effect of the wife's separate deed, as other rights depend upon the settlement of this question.

OPINION

COOPER, J.

We yield to the urgent solicitation of counsel to pass upon both questions presented by this appeal, though the decree might be affirmed upon the single point on which we are advised the bill was dismissed in the court below, viz., that, conceding the invalidity of the conveyance sought to be annulled, the...