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 *810trust because of the non-joinder of his wife in its execution, and obtain a homestead in it.
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.