54 So. 618 | Ala. | 1910
Joel Hodges died in February, 1903. He left surviving a widow, the plaintiff-appel
The effect of this proceeding upon the plaintiff’s title to the 20 acres omitted therefrom presents the only question necessary to be considered. It is contended for appellee (and it was so ruled below) that the plaintiff wa.s estopped from prosecuting to1 effect her 'action of ejectment because of the stated averment, and consistent therewith judicial ascertainment of the truth thereof by the probate court that the homestead contained 60 acres, instead of, and as, in fact, 80 acres.
It is clear, as indicated before, that at the time the petition to set aside the homestead was filed the title in fee to the 80 acres was already in the plaintiff. Hence, so far as enhancing her right and title to the entire homestead area, the proceeding in the probate court was wholly vain. That court had nor could have any power to divest the title already so invested by the automatic
On this record the affirmative charge was due the plaintiff. To give it for the defendant was error.
Reversed and remanded.