Clark v. Bird

48 So. 359 | Ala. | 1908

ANDEBSON,J. J.

The 40 acres in controversy was at the time of the attempted sale a part of the homestead, and the bond executed by John A. Clark, not being signed and separately acknowledged by . his wife, was Void as an obligation to convey, and was not the subject of a specific enforcement. — Moses v. McCain, 82 Ala. 370, 2 South. 741; McGhee v. Wilson, 111 Ala. 619, 20 South. 619, 56 Am. St. Rep. 72. Nor does a conveyance of the homestead which does not conform to the statute (section 4161 of the Code of 1907) operate as an estopped against the husband, notwithstanding he has been paid a Valuable consideration. It is simply void — a nullity to all intents and purposes. — Halso v. Scawright, 65 Ala. 431; Alford v. Lehman, 76 Ala. 526; Crim v. Nelms, 78 Ala. 604. The renting of these 40' acres, which was a part of the homestead, the owner at the time residing on the other portion, did not operate as an abandonment or affect its character as' a homestead. — Bailey v. Dunlap, 138 Ala. 415, 35 South. 451; Metcalf v. Smith, 106 Ala. 301, 17 South. 537. The chancellor therefore properly decreed that the contract was a nullity and not the subject of a specific performance.

The Constitution of 1901 (section 205) expressly exempts the homestead from the payment of any debt, except by a mortgage or other alienation, with the voluntary assent and signature of the wife; and section 4161 of the Code of 1907, provides the method of giving the assent. The only exception made for binding the homestead for a debt except as specially provided for, is under section 207 of the Constitution, in favor of laborers' and mechanics’ liens. To require the refunding of the purchase money, paid under a void contract of purchase, as a condition precedent to the recovery of the homestead, would be but the fastening of a lien or incumbrance on the same, directly in the teeth of the Constitution, thus creating upon the homestead, by way of estoppel, a charge or lien, which could not be placed thereupon by the direct and voluntary act of the owner, except in the manner and form required by the Constitution and statute. Nor can we understand how a court of equity can fasten a lien on the homestead for improvements, made by one in possession under a void contract of purchase, upon the theory of an equitable estoppel, thus doing, through the machinery of a court indirectly, what the parties could not have done directly, except in a certain manner. The chancery court cannot fasten a lien on the homestead, growing out of the acquiescence by the owner, upon the idea that it amounts to an implied obligation to pay for the improvements, when an express promise and obligation to do so could not operate as a charge, unless made in the manner and form prescribed by law, or unless it was for labor and material, and even in that event a compliance with the statute would be essential to the enforcement of same.

We, of course, have decisions where the court has required the repayment of the purchase money as a condition precedent to a recovery of land; but they did not involve the homestead. S'o. too. are owners of land re quired, under certain conditions, to pay for improve ments as a condition precedent to an eviction of an adverse holder, and we have a statute on the subject. —Section 3846 of the Code of 1907. Whether or not this section would apply to suits for the homestead we need not decide, since the complainant in the case at bar it not an adverse holder, not having paid all the purchase money. On the other hand, if he was, he could get the benefit of the statute in the pending action of ejectment.

The case of Cowan v. Southern R. R., 118 Ala. 554, 23 South. 754, and which is relied upon by counsel, is no authority estopping the plaintiff (Clark) from recovering his homestead, because of the erection by Bird, with the knowledge of Clark, of improvements, until first paying for said improvements. It is true the Cowan Case, supra, lays down the general rule of an estoppel from evicting a railroad whose track was laid with the knowledge of the owner, and cites authorities on the subject. But the homestead was not involved in a single case cited, and while the land in said Cowap, Case, supra, was the homestead, what was said as to the estoppel was not decisive of the case. There was no attempt to evict the railroad, as the bill simply sought compensation for the right of way and that the company be enjoined from using the same until complainant was compensated under the Constitution and statutes pertaining to the exercise of the right of eminent domain. Moreover, we can see how the doctrine of estoppel might be invoked against the eviction of a railroad going over the homestead, and yet not have any application to prop: erty not condemned or taken under the doctrine of eminent domain. The Constitution makes provision for taking property for certain purposes, whether it be the homestead or not, by compensating the owner, and which can be done independent of obtaining a conveyance. Yet when a conveyance is relied upon, instead of condemination procedings, the conveyance to the right of way, if over the homestead, is null and void, unless it is separately acknowledged by the wife. — McGhee v. Wilson, 111 Ala. 619, 20 South. 619, 56 Am. St. Rep. 72. But whether or not the doctrine of estop]?el can be invoked in these' railroad' cases,' as against, thé ‘homestead, we heed not decide, as it’would haVe-no bearing upon the case at bar, there being no railroad or right of condemnation involved. Nor should what we here say bear upon the railroad Cased, as none of them involved the homestead, except the Cowan Case, supra, and we have attempted' to demonstrate that it is not an authority in support of the estoppel set up in the case at bar.

While'we hold that the bond'of'John A. Clark is void as dn obligation to convey the homestead, we do not wish' to intimate that lie would not be personally liable for a breach of samé.' ' •"

The chancellorerfed in not dismissing the bill of complaint, and the decree is reversed,'and one is here render ed dismissing" sáin'e. ' ‘ ' ‘

Reversed and rendered.

Tyson, C. J:, and ‘Simpson and -Denson; JJ., concur.