Carroll v. Draughon

45 So. 919 | Ala. | 1908

DENSON, J.

This hill is exhibited by D. S. Carroll against J. W. Draughon, John E. Rooney, and J. R. Faircloth. The purpose of the bill is to have set aside a sale of the lands described in the bill; to require Oie respondents to account for rents and profits, and for timber converted by them; to have complainant placed in possession of the lands; and’ to have a lien on the lands declared in favor of R. H. Walker, for services rendered as an attorney in having the lands set apart to complainant’s deceased -wife as the widow of Delaware Peacock, deceased. A demurrer to the bill was sustained by the chancellor, in a decree enrolled September 2, 1907. The bill was then amended by complainant to cure the defects pointed out by the grounds of the demurrer, which were sustained. Thereupon the respondents demurred to the bill as amended, assigning several grounds for the demurrer. The chancellor, in a decree enrolled September 20, 1907, sustained the demurrer, and from tlie two decrees the complainant prosecutes this appeal, and assigns for error each of said decrees.

R. IT. Walker, is not a party to the bill, and, assuming that a lien existed in his favor for services rendered, as averred in the bill, the court could not render a decree declaring such lien in his favor. But on the facts averred in the bill, even if Walker were a party, no lien is shown in his favor. While an attorney at law may have a lien upon a judgment or decree obtained for a client, such lien does not extend to land or other like property,, the subject of the litigation and recovered for the client. —3 Brick. Dig. p. 64, § 39. Therefore the decree of September 2, 1907, is without error.

The demurrer to the amended bill raises the inquiry: Does complainant show by the averments of the bill that he is possessed of such an interest in the land as Avill support the bill and authorize the relief? As has been previously observed, complainant’s wife, at the time he married her, was the widow of Delaware Peacock, deceased. Peacock died intestate April 4, 1894, leaving surviving him his widow, Ophelia A., and two minor children under 14 years of age. The bill shows that no administration was had on the estate of Peacock, and that the widow, Ophelia A., remained in possession of the homestead of 160 acres of land in Geneva county, and in the months of October and November, 1901, after her marriage to complainant, by. petition to the probate court of Geneva county, she “had set aside to her by commissioners appointed by the probate court under sections 2069, 2097, 2098 of the Code of 1896 of Alabama, the said homestead ; * * it being the same homestead upon which they were living when her husband, Delaware Peacock, died.” The foregoing averments are embraced in the third section of the bill, and in the fourth section it is averred that the report of the commissioners showed that the estate was insolvent.

Unless it is ascertained that the estate is insolvent, the widow takes, under section 2069 of the Code, only a life estate in the homestead set apart. If the estate is ascertained to he insolvent, then the absolute fee vests in her. It is well established by the decisions of this court that the ascertainment necessary is a judicial ascertainment. —O’Daniel v. Gaynor, 150 Ala. 205, 43 South. 205, and cases there cited. A judicial ascertainment of insolvency is not only not averred here, but the averment that there is no administration on the estate of Peacock negatives the idea that there was such an ascertainment. So that the averments of the bill in respect to the setting apart of the homestead under section 2069 cannot, avail to show that the widow became invested with the fee in the homestead.

There is lack of averment in the bill that the lands set apart as the homestead constituted all the real estate owned in this state by the deceased husband at the time of his death, or that the homestead was at the time less in value than the amount exempted by law. Consequently the bill fails to make a case in which the absolute estate vested in the widow under either section 2071, 2097, or 2100 of the Code of 1896. — Brooks v. Johns, Adm’r, 119 Ala. 412, 24 South. 345.

Construing the averments of the bill most strongly against the complainant, his wife took only a life estate in the homestead, and her deed to him conveyed only that interest, and, of consequence, his interest ceased upon her death.

The decrees of the chancellor are affirmed.

Affirmed.

Tyson, C. J., and Haralson and Anderson, JJ., concur.