Young v. Ashley

• Citation: 123 Miss. 693,86 So. 458
• Decision Date: 29 November 1920
• Docket Number: 21332
• Court: United States State Supreme Court of Mississippi
• Parties: YOUNG v. ASHLEY ET UX

86 So. 458

123 Miss. 693

YOUNG v. ASHLEY ET UX

No. 21332

Supreme Court of Mississippi

November 29, 1920

October 1920

1 HOMESTEAD. Wife a proper party to a suit to protect homestead rights as against claims founded on instrument signed by hushand alone.

The wife has a right in the homestead of her husband which equity will protect; and she is a proper party to a suit to protect the homestead rights against invasion or intrusion by those claiming right under an instrument signed by the husband alone.

2 EQUITY. Maxim that he who seeks equity must do equity not applicable to homestead rights.

The doctrine that "he who seeks equity must do equity" has no application-to a suit by a husband and wife to enjoin the cutting of timber by one claiming the right to do so under a contract signed by the husband alone. The maxim will not be applied so as to destroy homestead rights created by statute in such cases.

HON. L F. EASTERLING, Chancellor.

APPEAL from chancery court of Copiah county, HON. L. F. EASTERLING Chancellor.

Suit for injunction by L. M. Ashley and wife against R. J. Young. From the decree rendered, defendant appeals. Affirmed.

Affirmed.

Wilson & Henley, for appellant.

The contention of appellant is that the court below erred in granting appellees the relief sought without requiring them to do equity by restoring at least that part of the purchase money due after the value of the timber cut, as established by the evidence, had been deducted.

The case of Rounds v. Clark, 70 Miss. 263, is conclusive on this question. In that case a demurrer is filed to a bill of complaint on the ground that the complainants did not offer to do equity by restoring the purchase money. This demurrer was sustained, the bill dismissed and complainants appealed. The court held: "If the husband elects to invoke the aid of a court of equity rather than resort to a law court, the shadow of the wife's name as an unnecessary party to the proceeding will not absolve him from the operation of the rule which requires him to do equity before asking relief in equity. Though the conveyance is invalid, the appellant must be required to do equity by paying what the conveyance designated to secure before he can have a court of conscience cancel the invalid instrument.

This doctrine was also adhered to in the case of Duncan v. Moore, 67 Miss. 136, and Dean v. Robertson, 64 Miss. 195. In fact, it is a well-established rule of law in this state that before a court of conscience will declare an invalid contract void, and cancel the same, it will require the party seeking to avoid his contract to do equity by making the other party whole. American Freehold Land Co. v. Jefferson, 69 Miss. 77; Watts v. Bonner, 66 Miss. 629; Hawson v. Fields, 41 Miss. 520; Shipp v. Wheeler, 33 Miss. 646; White v. Trotter, 26 Miss. 88; Martin v. Brodus, Freeman, 35.

If Mrs. Ashley did not approve of this contract she should have objected when she first learned of it, and Mr. Ashley should have restored the eight hundred dollars paid him by Young instead of retaining it for nine years and accepting several payments for extensions of the time which Young would have to remove the timber. Therefore, in equity as well as in law, L. M. Ashley must account for the interest, as well as the original amounts paid him.

Where one improperly retains the property of another he is presumed to have kept it for a purpose of profit to himself, and will be charged with interest." 22. Cyc. 1506; Note 78; citing Simpson v. Feltz, 16 Am. Dec. 602; Marvin v. McRae. Cheves, (S. C.) 61.

It would certainly be inequitable and unfair for appellee, M. L. Ashley, to retain the purchase money paid by Young in good faith, in view of the fact that Ashley has waited so long before objection to the contract. As long as timber was cheap it was Ashley's purpose to hold Young to his contract and no objection was made. In fact, both Mr. and Mrs. Ashley were evidently pleased with their bargain, or they would have refused to grant extensions. Therefore, Ashley must account for the nine years' use of this money, as well as the money itself. Powell v. Plant, 23 So. 399, see page 405; Torplay v. Wilson, 33 Miss. 467. Especially is this true if Young is required to account for the mesne profits, that is the amount of timber cut. White v. Tucker, 52 Miss. 145; Brooks v. Block, 68 Miss. 162. It was the duty of the court to order an accounting between the parties to this contract, or else render its decree in such a way as to make clear what it held in regard to the restoration of the purchase money, the court did neither.

Wells, Stevens & Jones, for appellees.

The deed to the standing timber on a homestead is not only voidable but absolutely void. MacKenzie v. Shows, 70 Miss. 388, 12 So. 336; 35 Amer. State Reps. 654; Blair v. Frank B. Russell & Co., 120 Miss. 108. In the first named case our court, by Judge WOODS said: "Collins, the purchaser of the timber, acquired nothing by the invalid conveyance from the husband alone." In the last named case this court, by Judge Ethridge, said: "It clearly appeared that a large number of trees cut were situated upon the homestead, and as the wife admittedly had not signed the deed, it was void as to the homestead, etc."

In fact, counsel for appellant admit the invalidity of the deed and make here the sole contention that, because this originated in the chancery court, no relief could be given the cause of appellant on this point is bottomed upon a decision that has been expressly overruled. The case of Pounds v. Clark, 70 Miss. 263, which counsel say is conclusive on this question was expressly overruled by MacDonald case; this court, speaking through Chief Justice WHITFIELD, said: "The case of Pounds v. Clark, 70 Miss. 263, 14 So. 22, announces a wholly unsound proposition and it is hereby overruled."

Whatever name may be given to the wife's interest in the homestead, whether it be called an estate or an interest or a claim, or a veto power merely, it is such an interest or right as the statute requires to be conveyed by deed and a deed to the homestead without the wife joining in the conveyance has been correctly held in the case of G. & S. I. R. R. Co. v. Singleterry, 78 Miss. 72, 29. So. 754, to be an absolute nullity. And it was further held in that case that the husband himself was not concluded as to his own interests even from bringing the action of trespass to recover damages from the railroad company for laying its right of way on the land to which the husband had executed a conveyance without the joinder of the wife; the land being homestead property. And further, the plain purpose of our statute on this subject was to protect the wife in the shelter and refuge of a home and unless she herself joined in conveying away the homestead. (See the opinion in full, settling the whole law of this case.)

But aside from any controversy that appellees should have offered to do equity in any bill to cancel the invalid deed, we respectfully submit that the main purpose of the bill in this case was to enjoin appellant from cutting the trees that remained on the homestead. There was a temporary injunction to restrain the purchaser under his invalid deed from entering upon the lands and taking any more of the trees. Mr. Young had secured about four extensions of time within which to cut and remove the timber, and it is intimated in the record that Mrs. Ashley became tired and exhausted with this continual claim to the timber hanging over the homestead, and the bill was not filed in this case until Mr. Young by his own testimony, had cut timber in value worth a great deal more than he paid as a consideration for the invalid deed. In other words, by his own testimony, he cut two hundred and seven thousand feet for which he paid eight hundred dollars as the original consideration, and ninety-two dollars for extensions. On a basis of anywhere from four to six dollars a thousand stumpage, the court will observe that he has realized an amount in excess of the original consideration. By all the testimony in the record he has received timber more valuable than the consideration paid. He is only smarting under the disappointment of not realizing a greater profit out of the invalid transaction. But regardless of the amount realized this is a bill filed jointly by husband and wife to protect the seventy-five thousand feet of standing timber. The main purpose of the bill is to obtain injunctive relief. Certainly if husband and wife can maintain an ejectment in a court of law or a suit against the railroad company for damages for laying the track in pursuance of an invalid deed to the right of way, then they can maintain an injunction to stop an alleged purchaser of the timber from going upon the homestead with his team and logging outfit and selling and taking away the trees to which the purchaser has no title whatever. This is the sole proposition before the court.

Our court in MacKenzie case, 70 Miss., said: "We are not inclined to eat away a wise and most beneficent statute designed for the welfare and support and comfort of wives and children by engrafting any exceptions upon it."

We take our stand with the court on the side of helpless widows and innocent children, playing and prattling about the old homestead. The statute announces a rule of conduct and is expressive of the public policy of the state. Will the court say that the wife cannot go into equity even to cancel a deed which the husband has made without her signature or consent? If so cruel or profligate a husband with the aid of the court can nullify the statute, we are not concerned with any right which the husband might have in his separate bill asking for relief. We are also not concerned with a bill...