Woods v. Campbell
Woods v. Campbell
Opinion of the Court
delivered the opinion of the court.
Code 1892, § 2732, has no application to a trust deed on a homestead, absolutely null and' void by reason of the wife’s failure to join in its execution. Only the ten-year statute as to adverse possession could apply to this suit. See sec. 2730. H. Woods, Jr., did not sustain the relation of mortgagee; he took possession of the lands involved in this case as a naked trespasser, and those claiming under him cannot find shelter under Code 1892, § 2732.
The application to amend the answer came too late. The evidence taken shows inexcusable negligence' on the part of appellant Pierce — by whom the newly-discovered evidence was attempted to be proven, and who was originally a party to the suit and in possession of the lands in controversy; and the slightest diligence would have disclosed to the appellants all that Pierce knew at the outset.
The doctrine that he who seeks equity must do equity has no application whatever to the case made by the record. The homestead was exempt, and descended exempt to the heirs of Dozier. It would be a mockery of the exemption law, and a perversion of the equitable maxim referred to, to hold that the heirs were bound to tender, with their bill, the debt of their
The decree is affirmed.
Reference
- Full Case Name
- Edgar H. Woods v. Jane Campbell
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- Homestead. Mortgage. Failure of loife to join, liedenvption. Statutes of limitations. Oode 1892, § § 2730, 2732: Amendment. Time. Equity. In an action by the heirs of a grantor in a deed of trust upon his homestead, void by reason of his wife’s failure to join in its execution, to recover possession of the land from those claiming under the grantee, who took possession on foreclosure of the trust deed: (а) The statute of. limitations, Code 1892, §2732, prescribing a limitation for suits to redeem from mortgages, has no application, the only statute of limitation applicable being Code 1892, § 2730, barring suits after ten years where defendants have held lands adversely; and (б) An application to amend the answer on the ground of newly-discovered evidence, made after decree for complainants, alleging that an original defendant, as to whom the suit had been dismissed, would show that the grantor had abandoned the property as his homestead before the execution of the trust deed, and was at the time living on another place, was properly disallowed, as coming too late and because, by the exercise of diligence, defendants could have known the facts before; and (c) The doctrine that he who seeks equity must do equity does not require complainants to tender with their bill payment of the debt owed by the grantor, the homestead having been exempt from all debts not lawfully charged against it.