Opinion
No. 32215.
May 4, 1936.
1. APPEAL AND ERROR.
Only actual parties to suit, their privies, or personal representatives may appeal.
2. APPEAL AND ERROR.
Order denying wife right to intervene as defendant in suit against husband to foreclose mortgage on homestead, where wife had not joined in mortgage, was "interlocutory" or "procedural order" from which no appeal was allowable under statute, or, if so, not as matter of right (Code 1930, sec. 14).
3. MORTGAGES.
Foreclosure of mortgage on homestead and sale decreed in suit against husband in which wife, who had not joined in mortgage, was not allowed to intervene as defendant held not res judicata as to wife's right to bring suit to cancel commissioner's deed as cloud on homestead title.
4. TAXATION.
Where commissioner's deed to mortgagee, executed after foreclosure, was properly canceled, because wife, who had not joined in mortgage covering homestead, was not allowed to intervene as defendant in foreclosure suit against husband, mortgagee having redeemed lands from state and county tax sales and paid taxes held entitled to be subrogated to state and county lien in respect to those payments.
APPEAL from chancery court of Leake county. HON. M.B. MONTGOMERY, Chancellor.
Green, Green Jackson, of Jackson, and Jeff Kent, of Forest, for appellant.
It was error not to sustain appellant's demurrer.
42 C.J. 167; Henderson v. Still, 61 Miss. 391; Miller v. Sherry, 2 Wall. 251, 17 L.Ed. 830; McIntosh v. Munson Road Mchy. Co., 167 Miss. 546, 145 So. 731; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Natl. Life Acc. Co. v. Prather, 172 Miss. 567, 161 So. 117; Harrison v. Turner, 116 Miss. 550, 77 So. 528; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Adams v. Railway Co., 77 Miss. 194; Griffith's Chancery Practice, sec. 410; Slattery v. Renoudet, 125 Miss. 229, 87 So. 888; Webb v. Jackson, 165 So. 809.
The execution of the trust deed was valid.
Sections 1766, 1767 and 1778, Code of 1930; Rutherford v. Jamieson, 65 Miss. 219; Richie v. Duke, 70 Miss. 66; 29 C.J. 958; Nixon v. Hewes, 80 Miss. 88; Howell v. Bush, 54 Miss. 437; Bank v. Lyons, 52 Miss. 181; Thoms v. Thoms, 45 Miss. 272; Partee v. Stewart, 50 Miss. 720; Hand v. Winn, 52 Miss. 788; Griffin v. Ayers, 165 So. 595; Bennett v. Dempsey, 94 Miss. 410, 48 So. 901; King v. Sturges, 56 Miss. 606; Nye v. Winborn, 120 Miss. 1, 81 So. 645.
It was error not to require Rushing to do equity.
Mortgage Co. v. Jefferson, 69 Miss. 770, 12 So. 464; Purvis v. Woodward, 78 Miss. 922, 29 So. 917; Greenlee v. Hardin, 157 Miss. 229, 127 So. 778; Doherty v. Bartlett (C.C.A.), February 12, 1936; Farm Products Co. v. Jordan, 201 N.W. 199; Joslyn v. Noret, 224 Mich. 240, 194 N.W. 983; Glen v. Dodson, 180 N.E. 395; Vogler v. Gustin, 241 N.W. 147.
There should have been a refund of the taxes.
Sole remedy is by appeal from decree; collateral attack upon decree not permitted.
Hinton v. Shedd, 115 Miss. 208, 76 So. 144; 34 C.J. 567; Webb v. Jackson, 165 So. 809.
The trust deed is not invalid in its entirety under any circumstances.
Griffin v. Ayers, 165 So. 593.
O.H. Barnett, Jr., of Carthage, for appellees.
The lower court was correct in overruling the demurrer.
Belt v. Adams, 87 So. 666; Sections 514 and 515, Code of 1930.
We think the principle has been fully settled that the maxim that "he who seeks equity must do equity" does not apply to a suit to protect the homestead where there is no valid contract.
Woods v. Campbell, 40 So. 874; Young v. Ashley, 86 So. 458.
A conveyance, mortgage, deed of trust or other conveyance or incumberance upon the homestead exempted from execution shall not be valid or binding unless signed by the wife if the owner be married and living with his wife.
Section 1778, Code of 1930.
It is not even contended by appellant that Mrs. Rushing signed the note and deed of trust. Likewise it is admitted or at least undisputed that appellees were living on the Old Rushing place, this being the land in question, at the time of the execution of the deed of trust and note.
When the homestead right has once attached, continuous, actual occupation is not indispensable to preserve it.
Campbell v. Adair, 45 Miss. 170; Ross v. Porter, 72 Miss. 361, 16 So. 906; Burdick on Real Property, page 175; Collier v. Bounds, 11 So. 188; Scott v. Scott, 19 So. 599; Johnson v. Hurt, 31 So. 205; Mosely v. Larson, 38 So. 234; R.R. Co. v. Singletary, 29 So. 754.
The deed of trust could not be valid without the signature of Mrs. Rushing.
Duncan v. Moore, 7 So. 221; Foote v. Hambrick, 11 So. 567; McKenzie v. Shows, 12 So. 336; Hinds v. Morgan, 23 So. 35; Johnson v. Hunt, 31 So. 305; Hubbard v. Land Co., 33 So. 413; Federal Land Bank v. Miles, 169 Miss. 43; Young v. Ashley, 86 So. 458; McDonald v. Sanford, 41 So. 369; Cummings v. Busby, 62 Miss. 195; Gardner v. Cook, 158 So. 150; Campbell v. Adair, 45 Miss. 170; Section 1778, Code of 1930.
We submit the deed of trust was absolutely void.
Young v. Ashley, 86 So. 458; 13 R.C.L. 642, and 663, sec. 120.
In reply to appellant's contention that the court committed error in not requiring Rushing to do equity we call attention to the following cases: Young v. Ashley, 86 So. 458; McDonald v. Sanford, 88 Miss. 633, 41 So. 369; Woods v. Campbell, 87 Miss. 782, 40 So. 874, wherein it was held that one receiving money on paper executed on the exempt homestead without the signature of the wife was not required in a subsequent suit to make tender or do equity in order to protect the homestead. Also see Zukoski v. McIntyre, 47 So. 435, wherein it is stated that exemption is favored.
We submit that the court was correct in not requiring Rushing to refund the taxes paid by appellant. This tax was paid by appellant of its own motion, without saying anything to appellees about it.
61 C.J. 951.
We submit that the deed of trust executed on the land in question by L.S. Rushing, without the signature of his wife this land being their homestead, and appellees living on it at the time of the execution, and having been living on it for a number of years, and have never relinquished possession or control of it, was void.
Section 1778, Code of 1930.
On November 9, 1929, the appellee L.S. Rushing, the husband of the other appellee, gave a deed of trust to appellant's assignors upon one hundred fifteen acres of land which, as appellees assert and the court found, was then, and has since continued to be, the homestead of said husband and wife. The wife did not join in this deed of trust. There was a defect in the description of the land, and on December 4, 1933, appellant filed a bill against the husband seeking a reformation of the deed of trust and for its foreclosure in chancery. On January 18, 1934, before answer was filed by the husband, appellee, the wife, filed a petition in said cause asking to be made a party defendant thereto on the ground that the land involved was and had been the homestead as aforesaid, but the petition of the wife to intervene and be made a party was denied.
The cause thence proceeded to hearing and decree against the husband as the sole defendant, with the result that the deed of trust was reformed, a decree of foreclosure was rendered, a commissioner was appointed to sell the land, the sale was made and confirmed, and, in pursuance thereof, on November 14, 1934, a commissioner's deed was made to appellant. Within a few days thereafter the wife, joined by her husband, filed her original bill to cancel the said commissioner's deed as a cloud upon the title to said homestead, and, upon pleadings and proof in the latter case, the court found as first aforesaid and canceled the said commissioner's deed.
It is contended that the proceedings in the first suit are res adjudicata and that the wife is bound thereby, because, although the court erroneously refused to allow her to intervene and become a party defendant — see on this point McDonald v. Sanford, 88 Miss. 633, at page 639, 41 So. 369, 117 Am. St. Rep. 758, 9 Ann. Cas. 1 — the wife lost her rights to institute an independent suit because she did not appeal from the order of the court denying her the right to intervene. Only those who are actually parties to the suit or who are privies or personal representatives may appeal; and as to an appeal from the order denying the wife the right to become a party, this was an interlocutory or procedural order from which no appeal was allowable under the interlocutory appeal statute (Code 1930, sec. 14), or, if so, it was not as a matter of right. The wife was not barred by the former suit to which she was not made, or allowed to become, a party.
There is sufficient testimony in the record to sustain the findings of fact by the chancellor on the second hearing, and the decree would be affirmed except for the following matter: Appellant averred by its cross-bill and showed by its proof that it had paid out certain sums for the redemption of the lands from tax sales for state and county taxes, and for the payment of taxes. Appellant was entitled to be subrogated to the lien of the state and county in respect to those payments. We have recently dealt with this precise point in Federal Land Bank v. Newsom (Miss.), 161 So. 864, 867; Id. (Miss.), 166 So. 345.
Affirmed in part; reversed in part and remanded.