Hamner v. Freeman

61 So. 106 | Ala. | 1913

ANDERSON, J.

We are disposed to agree with the chancellor to the effect that the deeds from the appellant to his sons Avere inoperative, as against this complainant, but do not agree that all of the property conveyed Avas liable to the complainant’s demand. The undisputed evidence shows that Hamner, Sr., resided on this land, and 160 acres of the same was subject to his claim of homestead exemption. The chancery court, therefore, erred in holding that complainant had a lien upon all of the property. As a general mile, a conveyance of a homestead cannot be fraudulent against creditors, whether the conveyance be to the Avife or to a third person, since they have no recourse against it. — Steiner v Berney, 130 Ala. 289, 30 South. 570; Talladega Bank v. Browne, 128 Ala. 557, 29 South. 552. And, although there are cases Avhich uphold the contrary doctrine, nevertheless, the homestead right, according to the great weight of authority, is not forfeited by such transfer or attempted transfer. There may be a bad motive, but there is no illegal act. A fraudulent conveyance does not enlarge the rights of creditors, but merely leaves them to enforce their rights as if no conveyance had been made. — 20 Cyc. 283, 281. When a debtor has conveyed to third persons land, including his homestead interest, to hinder, delay, and defraud his creditors, and such conveyance has been set aside and avoided at the suit of creditors, such debtor then has the same right to assert his homestead exemption against such creditors as he would have had if the conveyance had never been executed by him. — Kennedy v. First National Bank, 107 Ala. 170, 18 South. 396, 36 L. R. A. 308; Id., 113 Ala. 283, 21 South. 387, 36 L. R. A. 308; Yates v. Adams, 119 Ala. 217, 21 South. 517, 72 Am. St. Rep. 910. The appellant here interposed his exemption claim during the progress of the cause and before there Avas a decree or order of condemnation, and which was seasonably asserted, and which fact avoids one of the points upon Avhich the court Avas divided in the Kennedy Case, supra, as the claim there did not come until after a decree directing a sale of the land.

The • complainant’s judgment contained a waiver of exemptions as to personal property, so the engine, boiler, etc.,-which was treated by the grantor as personal property was not exempt and was subject to the complainant’s claim. On the other hand, if a fixture, so as to be a part of the realty, it seems to be located on the part of the land not embraced in the homestead claim.

It is suggested by the appellant that the complainant is not the owner of the Searcy judgment, or, rather, that he did not prove the execution of his assignment of same; and that he objected to same as evidence. The court convened on May the 6th, and the decree recites tii at the cause was submitted in term time for a decree in vacation. The chancery court term is one week, so the case must have been submitted before the 14th of May, yet the respondent’s objections were not filed until the 14th of May, and after the submission of the cause, and this conclusion is borne out by the fact that the note of submission does not affirmatively show a submission on the objections, and from the further fact that they are not noticed in the decree.

The chancery court properly subjected all property, other than the homestead, to the complainant’s demand, but erred in disallowing the appellant’s homestead exemption claim, and in subjecting all the property to the satisfaction of the said judgment. The decree of the chancery court is corrected so as to exclude the land set out in the exemption claim, and is in other respects affirmed, and the cost of this appeal is taxed against the appellee.

Corrected and affirmed.

Dowdell, C. J., and Mayfield and de Graffenried, JJ.. concur.