This bill was filed in the Chancery Court of Claiborne County by a married woman against her husband and the defendant, C. H. Rogers, claiming a homestead.
The facts as found by the Court of Chancery Appeals are substantially as follows: In the year 1890, S. E. Cottrell; husband of complainant, sold and conveyed to the Rogers Syndicate Land Company a tract of land situated in Claiborne County, comprising about thirty acres, for a consideration of $5,804, paid partly in cash, and notes executed for the residue. This land was a part of the home tract occupied by Cottrell and wife. Mrs. Cottrell refused to join in the deed. The land company having defaulted in meeting the deferred payments, the land was sold for balance of purchase money, when the defendant, C. H. Rogers, became the purchaser. It is admitted that after this date, to wit, on the sixteenth day of May, 1891, the said Cottrell, together with his wife, the present complainant, jointly executed a deed conveying a large boundary of mountain land to M. Y. Cottrell for the consideration of $2,110.50, which has been paid. It further appears that when' S. E. Cottrell sold his home place to the land company, he retained seven acres of said home place; that he also retained twenty-two acres, worth one dollar per acre, and also three acres worth five dollars per acre. It further appears that Cottrell subsequently purchased one-eighth of an acre, upon which he erected im
. As already stated, the thirty acres were sold to the land company in 1890, for $5,804, but are now not worth much more than $1,000. This extraordinary shrinkage in value must be due to inflation in boom times and depression following the collapse of the boom. There is no proof, however, on this subject to be found in the record.
The Court of Chancery Appeals state, in their opinion, that it does not appear — leaving out of view the mountain land — that S. E. Cottrell retained a thousand dollars worth of land after making his sale to the land company of thirty acres of the home place, but that Court does find that the land company at that time offered in good faith,, and would have paid Cottrell, $1,500 for the seven acres of the home place which the latter reserved. The mountain lands referred to were sold by Cottrell and wife after Cottrell, the husband, had sold the thirty acres of the home place, but, prior to the sale by
Upon these facts the question presented is whether Mrs. Cottrell is entitled to claim a homestead in the thirty acres purchased by Rogers at the foreclosure sale.
The Chancellor allowed the homestead, and, oh appeal, his decree was affirmed by the Court of Chancery Appeals. Rogers appealed to this Court, and has assigned errors. We are of opinion the decree of the Chancellor, as well as that of the Court of Chancery Appeals, was erroneous. We predicate nothing upon the fact that after the conveyance by the husband of thirty acres of the home tract, the wife joined him in conveying a body of mountain land worth more than $1,000, for, if the husband, without the joinder of the wife, conveyed away the land selected by him as the head of the family for a home, or if he conveyed a part of it,
The power to select the homestead is devolved, by the Act of 1877, upon the husband, and, after exercising the right of selection, the husband may not convey the homestead without the joinder of the wife, in the mode prescribed by the statute. So that the subsequent joining in the deed to the mountain land did not bar the wife of her right to claim a homestead in the home tract if it has been illegally conveyed. In the case of Hildebrand v. Taylor, 6 Lea, 659, it was held that the head of the family might, without his wife joining -in the conveyance, make a valid mortgage of part of a farm on which he was living, provided he retained a sufficiency of the land, with improvements thereon, on which he was living, to constitute a homestead, etc. Again, it was held by this Court, in First National Bank v. Meacham, that, when the head of the family owns several tracts of land, and resides with his family upon one of them worth as much as $1,000, he may convey the other tracts free of the homestead right. It was also held in said cause, that if the husband is the owner of a single tract exceeding in value $1,000, upon which he resides, he may sell off portions of it, provided he retains a ' homestead worth $1,000. Enochs v. Wilson, 11 Lea, 228; Rayburn v. Norton, 1 Pickle,
On this subject the finding of the Court of Chancery Appeals is as follows: “From these facts [after reciting them] we are bound to infer that in 1890 the thirty acres of the home place were sold to the Rogers Syndicate Land Company for its value ($5,804), but we cannot entertain the same inference as to the remaining seven acres. Standing alone, the agreement as to what Mr. C. H. Rogers would testify about this $1,500 offer perhaps would be sufficient to establish the proposition that the remaining seven acres were at that time worth the amount he offered; but Mrs. Cottrell, the complainant, on cross-examination, was expressly questioned upon this point, and she said that the $1,500 was a good deal more than the land was worth; so that the proof is in this condition, and we are unable to say what the seven acres were worth in 1890. Therefore, leaving out of view the mountain land referred to, it does not appear that Cottrell retained a thousand dollars’ worth of land after making Jiis sale to the Rogers Syndicate Land Company of thirty acres, above mentioned.”
We are unable to concur in the conclusion of
Reverse the decree of the Court of Chancery Appeals and dismiss complainants’ bill with costs.