Majors v. Majors
Majors v. Majors
Opinion of the Court
delivered the opinion of the court.
We do not approve the practice tolerated in this case, but no objection was taken in the court below to the new mode of defending; and the motion was decided on its merits, an^l an appeal was granted by the court from its decree overruling the motion, in order to settle the principles of the case.
There was no estoppel by the adjudication relied on.
In order to further settle the principles of the case, we state that the facts averred by the bill are insufficient to maintain the relief sought, and the continuance of the litigation can serve no useful purpose, if the complainants have not a better case than their bill presents. It is not to be tolerated that Majors, who executed a deed of trust, without the joinder of his wife, on land not at the time occupied by him as a residence, should, because of a purpose entertained at some future day to resume the occupancy of theHand thus conveyed, have it in his power, or put it in the power of his wife and children after his death, for that reason- to annul the deed of
When he executed the deed of trust, Majors had ceased to reside on this land, and was residing with his family on his wife’s land, some miles distant from this. It is not averred that his removal was temporary, by reason of some casualty or necessity, and with the purpose of speedily feoccupying it. as soon as the cause of his absence could be removed, which is the language of the statute applicable. Code 1871, sect. 2144. Thompson v. Tillotson, 56 Miss. 36.
The bill should be amended, if a better case can be made, and it should be met by a demurrer, plea, or answer, and not by a motion as a substitute for either.
The order overruling the motion is affirmed, and cause remanded for further proceedings.
Reference
- Full Case Name
- Thomas J. Majors v. Belle E. Majors
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. Chancerx Practice. Res adjudicata. Motion to dismiss. It is bad practice for the defendant in a suit in chancery to present the question of res adjudicata by a motion to dismiss the bill. 2. Bes Adjudicata. Suits in chancery. Claims of dower and homestead. Certain judgment creditors of J., deceased, filed a bill against T., and against B. as administratrix of the estate of J., to set aside a conveyance of certain land from J. to T., through a trustee, on the -ground of fraud, and to subject the land to their judgments. T. filed a cross-bill making the complainants in the original bill and B. defendants, and alleging that she had combined with them to have the conveyance to him set aside in order that she might obtain dower in the land. A decree was rendered dismissing the bill and perpetually enjoining B. “ from setting up any claim to dower in said land, or other interest therein or thereto.” Subsequently, B. and her two minor children filed a bill against T., claiming a homestead in the same land. T. set up the decree in the former suit as ?'es adjudicata of the matters involved in this suit. Held, that the complainants in the latter suit are not estopped by the adjudication in the former suit. 3. Homestead. Conveyance by husband. Absence of family. Claim by widow and children. J. and family, having resided on a certain place belonging to him, as their homestead, “up to 1873,” then moved, “temporarily,” to a place belonging to his wife, with the purpose of returning to his place “in 1875.” While thus residing on the wife’s place, J. conveyed away his place, upon which the family-had formerly resided; but his wife did not join in the deed. After the death of J., his widow and minor children filed a bill setting forth the facts above stated, and claiming a homestead in the land conveyed by him. Held, that the bill is not maintainable.