87 Ala. 198 | Ala. | 1888
Tbe bill is filed by tbe appellee, Mrs. Allen, for the purpose of asserting an equitable interest in certain described lands, of which the legal title is in the appellant, Clark, who was defendant in the court below. The incidental relief sought is an injunction against a judgment for rent, obtained by Clark against the complainant and one Spencer, in an ejectment suit for the lands, in which Clark proved successful, which judgment was affirmed on appeal to this court. — Clark v. Spencer, 75 Ala. 49.
Two or three settled principles of law, in our opinion, require an affirmance of the chancellor’s decree granting to the complainant the relief prayed. ,
The land in controversy belonged to one Spencer, and contained eighty-eight acres, or eight more than he was entitled to have set apart to him as a homestead, as against the execution under which it was sold, and purchased by Clark. Mrs. Allen bought the land from Spencer, for a valuable consideration, he at the time residing on it as a homestead. This sale, by deed duly executed, passed to her as purchaser an equitable title to Spencer’s right of homestead — consisting of eighty acres, to be set apart or selected out of the whole tract — the remaining eight acres only being liable to Clark’s execution. Clark, nevertheless, was vested with the legal title to. the whole, until the exempted portion was set aside. When so designated and identified, the homestead would be rescued from the execution sale, because, as to the homestead, this sale was void. —Clark v. Spencer, supra; DeGraffenreid v. Clark, Ib. 425; Hardy v. Sulzbacker, 62 Ala. 44. Under this state of facts, the title of the complainant was purely equitable, and not legal; and she could invoke the aid of a court of chancery in asserting it, and having it confirmed. That court would have power to appoint commissioners, and authorize them to set aside the homestead by metes and bounds, so as to embrace an area of eighty acres, including the dwelling of the vendor, and not exceeding in value the sum of two thousand dollars. McGuire v. Van Pelt, 55 Ala. 344, 364. This is precisely the relief granted by the special chancellor in his decree.
It is contended, however, that the complainant had a
The-decree is affirmed.