127 Ala. 570 | Ala. | 1900
In 1889, the plaintiff procured a homestead certificate from the United States land office for the land sued for. At that time he was a married man and resided -upon the tract of land of which the strip in controversy was a part. He and his family continued to live upon the land from the date of his entry to the time of the trial of this case, improving and cultivating it, claiming it as his homestead. In 1895, he perfected his title and procured a patent to the tract from the United States. In August, 1890, he and his wife executed to the Chattanooga Southern Railway Co., through whom the defendant claims title by mesne conveyances, a quit claim deed to the strip in -controversy as a right of way. There was no separate and apart acknowledgment by' the wife to thi-s deed. The only question presented is, was this necessary in order to make the deed a valid conveyance of the right of way .■attempted- to be conveyed by it? In other words, was the tract of land over which the right of way was attempted to be granted the homestead of the plaintiff
Why was it not the homestead of the plaintiff at the date of the -execution of the deed? There are two contentions urged against its being the plaintiff’s homestead. The first is, that under the homestead and preemption laws, the plaintiff acquired no title to the land until he procured hi-s letters patent; that the title was in the United States government, and the only right the plaintiff had was the right to perfect his title after five years actual occupancy. That he could not sell or convey it or any -portion of it except for church, cemetery or school purposes, or for the right of way of railroads, without destroying his right to complete and perfect his title. The land was not subject to taxation by the State until he acquired the title, and abandonment of it by him at any time before the expiration of the period of occupancy required would destroy his right to ever perfect his title. All this may be conceded, and, yet the land Avas the homestead of the plaintiff. It is not the quality and quantity of the estate, but the uses to Avhich the land is deAroted that impresses it Avith the characteristic of a homestead. “The great controlling purpose and policy of the constitution, is the protection, the preservation of the homestead — the dAvelling place. * * * It is the home place — the roof that shelters — the constitution and statutes protect from liability to the payment of debts, and, Avhen the owner is a married man, subject to the restrained alienation. * * * Usually, it is accompanied by an estate or interest; but, if it is not, it is the misfortune of the occupant.” — Watts v. Gordon, 65 Ala. 546 Tyler v. Jewett, 82 Ala. 93; Gaylord v. Place, 98 Cal. 472; Spencer v. Geissman, 37 Cal. 96; Watterson v. Bonner, 19 Montana, 554.
The second contention is, that if a separate and apart acknoAvledgement be required, this'Avoul-d be placing a limitation on the plaintiff’s right to transfer the right
The deed executed by the plaintiff was void, and the affirmative charge requested by him should have been .given.
Reversed and remanded.