74 Ala. 271 | Ala. | 1883
— The appeal must be dismissed. The only judgment or decree found in the record, having any of the properties of a final judgment or decree, is the judgment of the Circuit Court rendered on the contest of the right of homestead claimed by the widow and minor children, certified from the Court of Probate. That judgment, the statute (Code of 1876, § 2841) seems to intend, shall not be the subject of an appeal, but that an appeal shall lie only from the decree rendered in the Court of Probate, on the subsequent proceedings which it is contemplated shall be had. If such proceedings were had, and a decree rendered, they are not disclosed in the present record.
The proceedings in the Court of Probate, and the subsequent proceedings in the Circuit Court, were statutory. The jurisdiction of each court over the subject-matter is derived from the statute, which prescribes the course of proceedings, and limits and bound the jurisdiction. The jurisdiction is to hear and determine the validity of a claim of the widow, or of the minor children, to a homestead; and if the homestead is assigned by commissioners appointed by the judge of probate, whether the valuation fixed by the commissioners be just, or whether the real value of the land assigned is in excess of the exemption allowed by law. The contest of the claim of exemption, or of the valuation fixed by the commissioners, may be instituted by the personal representative, or by any party “ in adverse interest.” The whole purpose is to ascertain the lands subject to administration, separating them from the lands the widow or minor children can rightfully hold as homestead. The title to the lands is not involved; nor is the inquiry involved, 'whether there are outstanding incumbrances, to which the homestead right is subordinate. The homestead is carved
"Whether the mortgage to the appellant is valid and operative, was not the subjéct of determination in this proceeding. If it be valid, the widow and minor children were, nevertheless, entitled to a homestead in the lands, continuing until there was a foreclosure. If it be not valid and operative, the homestead can not defeated by it. As well could the mortgagee have gone into the Court of Probate with an action of ejectment for the recovery of possession, or" a bill to foreclose, as to have instituted a contest of the right of homestead, under the statute, upon the ground that his estate as mortgagee was superior to the right of homestead. The statute confers no jurisdiction upon the Court of Probate, or the Circuit Court upon a certificate from the Court of Probate, to entertain such a contest. -The statutory jurisdiction is limited and confined to the inquiry, whether the lands in which hojuestead is claimed were, at the death of the husband and father, impressed by his occupancy with the character of a homestead, as occupancy is defined by the statute, and whether the assignment made by the commissioners is in value excessive. It does not authorize a trial of disputed titles to land.
We do not pass upon the sufficiency of the certificate of the wife’s acknowledgment of the execution of the mortgage. That question, upon'this appeal, lies as completely without our jurisdiction, as it was without the jurisdiction of the Court of Probate, or of the Circuit Court.
Appeal dismissed.