90 So. 2d 775 | Ala. | 1956
This is an appeal by respondent from a final decree in equity, in which the court vacated a deed dated April 8, 1936, which deed was signed by R. E. Lee and his wife (complainant) with respondent as grantee. The authority invoked and applied by the court is section 15, Title 20, Code.
The bill alleged, and the court found, that a material part of the consideration for the execution of the deed was an agreement of the grantee to support the grantors during life. The said R. E. Lee died in March 1947 without taking any steps as authorized by section 15, supra. The complainant (the widow) filed this suit for that purpose on April 28, 1953. The bill shows that the land conveyed was their homestead at the time of the conveyance, and is less in area and value than the exemption provided by sections 625 and 661, Title 7, Code, and that R. E. Lee was the owner of it. It was all the real estate owned by R. E. Lee at the time of the execution of the deed, and he had none other when he died; and it was their homestead until he died. It does not appear that this complainant requested R. E. Lee to take action under said statute, section 15, and that he refused to do so. The statute does not declare that a deed so executed is thereby void and of no effect; but that it is "void at the option of the grantor". The question is whether the complainant is a grantor within the meaning of section 15, Title 20, supra.
We have a line of cases which hold that although a conveyance of the homestead is void when not executed and acknowledged by the wife as required by law, section 626, Title 7, Code, the wife can maintain a bill in equity to avoid the conveyance only when she alleges that her husband failed to act in the premises, Fies Sons v. Lowery,
It is said in People's Bank of Red Level v. Barrow Wiggins,
When a husband who is entitled to a homestead exemption abandons his wife and leaves the state, the wife, who is a resident of this state, is entitled to interpose any and all claims of homestead exemption which her husband could have interposed. Section 655, Title 7, Code; People's Bank of Red Level v. Barrow Wiggins, supra; Jackson v. Blankenship,
It is said in Vancleave v. Wilson,
We gather from the foregoing authorities several principles (may be more) which are independent of each other but related, and which were operative in 1936 when the deed here in question was executed, namely:
(1) Section 8046 of the Code of 1923, section 15, Title 20, Code of 1940, grants an option to the "grantor" in a conveyance (when the consideration is as set out in the statute) to be exercised by him during his life by taking proceedings in equity to annul the conveyance.
(2) When a married man executes a conveyance of thehomestead owned by him and occupied by him and his wife, without complying with the requirements of the applicable statute with respect to the signature and acknowledgment of the wife, the conveyance is void, but during the life of the husband the wife may not file a bill in equity to remove it as a cloud on the title to protect the homestead as a dwelling place unless she has called upon the husband to do so, and he has failed or refused or has abandoned the family. *228
(3) The wife has in her own right an equity of redemption from a mortgage on land not foreclosed as to her, enforceable when the circumstances justify.
The equity sought to be exercised here was apparently thought by the trial court and by counsel for complainant to be conferred by section 8046, Code of 1923, section 15, Title 20, Code of 1940, in effect when the deed was executed. Such equity is an option conferred on the grantor in a conveyance of which a material part of the consideration is an agreement of the grantee to support the grantor during life. The primary question here is whether the wife owning no interest in the home, but who joins in the conveyance in such manner as to give validity to the husband's conveyance, is a grantor under the statute. We think she is not such a grantor.
We think a grantor is one who conveys or grants something she possesses so as to vest title in the grantee. Our cases hold that a wife has no interest in the homestead or other land of her husband while he lives which she can grant. She has only a veto power, and a right to occupy the homestead with the family as long as it is the home. Therefore, when the husband dies the option dies with him under the statute unless he began proceedings while living to annul the deed. So that after his death, without him having proceeded, there was no option in existence since his wife was not a grantor within the meaning of the statute.
During the life of the husband, while he still possessed the option under the statute with reference to the homestead, his wife might have the right to call on him to exercise it by proceeding in equity, and on his failure or refusal (or when he has abandoned the family), she could proceed to enforce his right to exercise it while he is still alive. But it would be the enforcement of his right, not hers, that she is exercising. Not having called on her husband during his life to proceed in equity, and since he had not abandoned the family, she cannot obtain the benefit of the option conferred on him by the statute. We do not think this complainant is a grantor within the meaning of section 15, Title 20, Code.
The question of laches is not here insisted upon, but see Welch v. Whitman,
It is not necessary to consider the questions presented by the cross bill in view of our opinion that complainant is not entitled to relief. Therefore, the decree of the circuit court, in equity, should be reversed and a decree here rendered denying relief and dismissing the cause.
The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and SPANN, JJ., concur. *229