Woods v. Campbell , 87 Miss. 782 ( 1905 )

Whitxield, C. J.,

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 father, although the homestead which descended to them was absolutely exempt from any debt of the father.

The decree is affirmed.