Taltavall v. Marigny
| Decision Date | 03 February 1908 |
| Citation | 45 So. 465,91 Miss. 873 |
| Court | Mississippi Supreme Court |
| Parties | ADELE TALTAVALL v. BENJAMIN P. MARIGNY |
October 1907
FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.
Marigny appellee, was complainant in the court below; Mrs. Taltavall appellant and another were defendants there. From a decree in complainant's favor Mrs. Taltavall appealed to the supreme court.
The appellant, Mrs. Taltavall, before the instituting of the present suit, filed a bill in chancery against her husband Nicholas Taltavall, and the present appellee, seeking alimony from her husband, and to set aside a sale of land made by her husband to Marigny, claiming that it was the homestead of herself and husband when the sale was made and that she had not joined in the deed to it. Marigny's demurrer to the bill was sustained and the suit dismissed as to him, but was thereafter prosecuted against her husband for alimony and terminated in a final decree in the wife's favor, fixing a lien on the land mentioned and appointing a commissioner to sell the same.
Marigny, learning that the commissioner had been appointed and was about to advertise the land for sale began this suit and therein enjoined Mrs. Taltavall and the commissioner from selling the land. On final hearing, the facts being as here stated, the court below granted the relief asked by Marigny, and perpetually enjoined the commissioner from selling the land.
Affirmed.
E. M. Barber, for appellant.
It cannot be denied that the conveyance of the homestead made by Mrs. Taltavall's husband alone, without her joinder or consent, to Marigny, was an absolute nullity. McDonald v. Sanford, 88 Miss. 633; 41 So. 369; Bolen v. Lilly, 85 Miss. 344; 37 So. 811; Hubbard v. Land Improvement Co., 81 Miss. 616; 33 So. 413; Gulf, etc., R. R. Co. v. Singleterry, 78 Miss. 772; Walton v. Walton, 76 Miss. 662; 25 So. 166; Scott v. Scott, 73 Miss. 575; 19 So. 589; McKenzie v. Shows, 70 Miss. 388; 12 So. 336.
If the conveyance made by Mrs. Taltavall's husband, without her joinder therein, was an absolute nullity, could any decree of the court impart life to the conveyance? The answer is manifestly in the negative.
If the appellee, Marigny, had thought that his rights were being trampled upon and his property confiscated without due process of law, should he not have appealed from the final decree in behalf of appellant in the suit wherein she was complainant?
It cannot be contended that the question was res judicata between Mrs. Taltavall and Marigny, after the court sustained his demurrer to her original bill and dismissed the suit as to him, because this court has held that a final judgment for defendant rendered on sustaining a demurrer will not bar a subsequent suit between the same parties for the same cause. Alabama, etc., Ry. Co. v. McCerrin, 75 Miss. 687; Jackson v. Lemler, 83 Miss. 37.
No final judgment can be had in any case until the real matter in issue has been judicially ascertained and passed upon. 1 Freeman on Judgments, § 20.
Harper & Harper, for appellee.
It is well settled that if the Constitution prohibits the state from depriving any person of his life, liberty or property without due process of law, that provision inhibits the legislative department, the executive department, or the judicial department from depriving a person of his property without due process of law. Donovan v. Vicksburg, 29 Miss. 249; State Constitution, sec. 14.
If Mrs Taltavall, as complainant, had amended her original bill, after Marigny's demurrer thereto was sustained, and stated a different case and made Marigny a party by proper process, after the original bill had been dismissed as to him, the situation would be different. But, inasmuch as she failed to amend her bill in any respect and failed to retain Marigny in court by...
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