Moseley v. Larson

• Decision Date: 10 April 1905
• Citation: 38 So. 234,86 Miss. 288
• Court: Mississippi Supreme Court
• Parties: RUFUS M. MOSELEY ET AL. v. LOUISE LARSON

38 So. 234

86 Miss. 288

RUFUS M. MOSELEY ET AL. v. LOUISE LARSON

Supreme Court of Mississippi

April 10, 1905

FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

Mrs Larson, the appellee, was complainant, and Moseley and others (including John Larson, the complainant's husband), the appellants, were defendants there. From a decree in complainant's favor the defendants appealed to the supreme court.

Complainant prayed for an injunction against the further prosecution of an ejectment suit, for the cancellation of the deed from John Larson to Moseley and Murphy, for alimony for her support and maintenance, alimony pendente lite and permanent alimony, and for attorney's fees, and asked that these allowances be fixed as a lien upon said homestead prior to any claim Moseley and Murphy might have against said homestead or against said John Larson for reimbursement. Defendants Moseley and Murphy demurred to the bill, and their demurrer was overruled. Defendant Larson answered the bill, and made his answer a cross-bill praying for divorce and asking that the deed to Moseley and Murphy by him be ratified and confirmed.

[For a previous litigation between the parties, see Larson v Larson, 82 Miss. 116, a suit by the present complainant which failed for want of personal service of process on the husband, John Larson.]

Decree affirmed.

Harper & Harper, for appellants.

The bill is multifarious, and for that reason alone the demurrer should have been sustained to it.

The bill cannot be maintained on the ground that it is a bill to remove clouds from the title. Mrs. Larson has no title, never had a title, and does not claim to have a title to the parcel of land in question.

The wife has no property interest in the homestead where the title thereto is in the name of the husband; and having no property interest, she cannot invoke the aid of a court of equity to protect property rights which are imaginary and have no actual existence. Why should she be allowed to litigate as a complainant touching the homestead when she has no property therein? The court cannot give her any property rights in the homestead, and hence she has nothing to ask protection for, nothing to gain by litigation, and has no standing in court. Thorns v. Thorns, 45 Miss. 263; Duncan v. Moore, 67 Miss. 136; Pounds v Clarke, 70 Miss. 253; Massey v. Womble, 69 Miss. 347; Gattie v. New Orleans, etc., Co., 77 Miss. 754.

Alimony cannot be decreed against an insane husband, for the reason that he is not in fault; his insanity is his misfortune, and not his fault; and his misfortune cannot be taken advantage of by the wife to procure alimony. The granting of alimony is always founded upon the idea of wrongdoing by the husband, such as neglect, cruelty, adultery, desertion, etc.; never on the idea that his affliction and his misfortune make him liable therefor. This is clear when we remember that originally alimony was merely an incident to a divorce proceeding. To justify the granting of alimony there must always appear wrongdoing or neglect on the part of the party to be charged. Can it be said that an insane man has done wrong or that he has been guilty of neglect? Touching this matter, see Woerner's Am. Law of Guardianship, p. 481.

The case under consideration is readily distinguishable from the case of Scott v. Scott, 73 Miss. 575.

Ford & White, for appellee.

The true rule is that the wife is entitled to alimony whenever there is a separation without her fault. 1 Bish. on Mar., Div., and Sep., sec. 1253; Garland v. Garland, 50 Miss. 694. The rule is the same where the separation is caused by the insanity of the husband. Ib.

Alimony is but another term expressing the right of the wife to support by the husband when they are living together, and out of his estate when living apart. This right grows out of the marriage contract, and is not affected by the insanity of either party. "The visitation of God whereby a husband or wife becomes insane does not change the rights and duties which the parties sanely assumed at their marriage." 1 Bish. on Mar., Div., and Sep., sec. 1259.

"Divorce being a civil proceeding, a suit for divorce may be maintained against an insane person just as other civil suits. Both in reason and authority insanity may excuse an act otherwise unlawful, but where it is not it is no defense against the injured person's claim for redress. To deny the law's justice to the sane one because of the other's insanity would be to east in part on the former the burden which God has laid wholly on the latter." 2 Bish. on Mar., Div., and Sep., sec. 518.

So if complainant was seeking a divorce, the insanity of her husband would be no bar to her suit, and it is well settled in this state that a bill for maintenance or alimony may be maintained independent of any prayer for divorce. Garland v. Garland, 50 Miss. 694; Dewees v. Dewees, 55 Miss. 315; McFarland v. McFarland, 64 Miss. 449; Verner v. Verner, 62 Miss. 260; Scott v. Scott, 73 Miss. 575.

It is too well settled to cite authorities to show that an insane person is liable on his contracts made while sane, and it is settled by an unbroken line of authorities that a lunatic without a guardian may be sued both in the common-law courts and courts of equity. 16 Am. & Eng. Ency. Law, 601; Ex parte Northington, 79 Am. St. Rep., 317; Hines v. Potts, 56 Miss. 347.

The contention of the counsel that the cross-bill is multifarious cannot be maintained. The chancery court takes jurisdiction for all purposes. A decree for alimony would be of little value to appellee without the other relief sought, while the right to a decree canceling the deed is dependent on the right of appellee to a decree for alimony or for support; so it is apparent the different matters of relief sought are so interdependent that full relief could not be had without an adjustment of all the matters in controversy presented by the bill.

The facts in this case are identical with those in Scott v. Scott, 73 Miss. 575, where the wife, who had been driven from home by the husband, filed a bill against the husband and his vendee of their homestead seeking a cancellation of the deed.

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