Andrews v. Melton

51 Ala. 400 | Ala. | 1874

B. F. SAFFOLD, J.

In November, 1866, the sheriff sold under execution all of the real estate of Thomas S. Melton, subject to his right of homestead exemption. Previous to the sale, Melton exhibited and delivered to the sheriff his affidavit of claim to “ the following described land, as a homestead, to wit, the north-west fourth of half section twenty-four, township twenty, range twenty-one, known as Thomas S. Melton’s Mill place, in Tallapoosa County, Ala.” The land was purchased by the appellant, Andrews, he being one of the execution creditors. It seems to have been the sheriff’s own suggestion, to sell all of the land subject to the exemption, rather than to have the property so claimed valued and set apart, as required by B. C. § 2881. Under the sheriff’s deed, Andrews, by suit in ejectment, recovered, and obtained possession of this portion of the land over Melton’s occupancy of it.#- But this judgment was reversed, and the suit is still pending in the circuit court.

The widow and minor children of Melton file this bill, to establish their right to the northwest quarter of the northwest quarter of the said section twenty-four, and to have Andrews’s deed set aside as to so much of his purchase.

The affidavit of Melton describes the land claimed inaccurately, in one respect. The northwest quarter of a half-section expresses no usual or customary subdivision of the section. But a prominent object, situated upon it, is mentioned, which designates it as well, to wit, the “ Mill,” or “ Mill place.” The quantity, or the metes and bounds, only is indefinite. This is not important, as the metes and bounds and the value are to be ascertained, independently of the claimant, when necessary. The proof sufficiently sustains the decree of the chancellor, in respect to the identity of the portion claimed, or intended to be claimed. The quantity allowed, only forty acres, is not excessive. The value is not shown to be greater than the law permits, by any preponderance of testimony which would justify a reversal on this ground. Besides, the decree which declares Andrews’s deed inoperative, as to the entire quarter of the quarter-section, refers to the register the ascertainment of its cash value at the time of the sale. When his report comes in, and is confirmed, the court may conform its decree to the finding, and then issue the writ of possession.

The defendant, coming into the possession of this property in the manner he did, is not entitled to pay for the value of improvements made by him. He knew his title was disputed. Horton v. Sledge, 29 Ala. 478, and authorities there cited. There seems to be no error for which the decree should be reversed. The decree is affirmed.