87 So. 789 | Ala. | 1921
The original bill in this cause was filed by and on behalf of the children of William H. Hale, deceased, two of whom were minors, and sought, as stated on former appeal (
The bill was so framed that the demurrer cannot be made effective against any paragraph, and the demurrer was sustained, as we understand, to the bill as a whole on the ground stated in the second place above. All parties treat the mortgage as valid and defendant's foreclosure title as a valid subsisting title. We assume, therefore, that the title secured by defendant through the foreclosure is superior to any homestead right in the premises. This left in the original complainants nothing but the right to redeem; but this right, under the statute of this time, is descendible; and upon the death of Hattie Hale an interest in her right descended to defendant, and we think complainants in their amended bill gave full and proper effect to her right thus acquired. It follows that there are no homestead rights to interfere with a sale of the property for distribution — it was so held on the former appeal — and, for that matter, under the averments of the bill, complainants are not in the enjoyment of the premises as a homestead. The decree of divorce against defendant cut her off from homestead rights, nor was her status in that respect improved by her inheritance from Hattie Hale, for the reason, *286 already stated, that the mortgage was superior. Our conclusion is that the demurrer should have been overruled.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.