77 So. 406 | Ala. | 1917
Lead Opinion
On consideration of the application for rehearing, the majority of the court are of the opinion that the application should be granted, and the judgment of reversal set aside and one of affirmance entered.
The following may be stated as some of the reasons which impel us to the conclusion now reached:
It is without dispute that the property in question was the homestead of W. F. Sparling; that he resided upon it, with his wife, Janet A. Lewis Sparling, the ward of appellee, for some time, and until about the year 1894 or 1895, when he abandoned his wife, his homestead, and the state, leaving his wife in the possession of the homestead; that there she remained until about the year 1900, when she became insane, and was so adjudicated, and committed to the state asylum, where ever since (or at least until the filing of this bill), she has remained in confinement as an insane person. Ever since the abandonment of his wife, the husband has remained away from her and from the state, his locus in quo being unknown to his wife or his friends in Alabama until about the time of the filing of this bill or shortly thereafter. After the ascertainment of his whereabouts, and pending this suit, he conveyed or attempted to convey the land in question to appellant. He was afterwards made a party to the suit.
The bill was filed by appellee, as guardian of the insane wife, against appellant individually and as the executrix of her deceased husband, R. S. Lewis, who was a brother of the insane ward, and appellee, the guardian. The bill sought to have a resulting trust declared in the lands, in favor of the ward and against appellant, and enforced, to have an accounting against appellant individually and as executrix, and to have her convey the property to the ward or to appellee guardian. The chancellor granted the relief prayed, and respondent appeals.
The allegations and the facts to show the trust were that after the ward's husband abandoned her, R. S. Lewis lived with his sister in her home, or near by, and, as her agent, took charge of the home to assess it for taxes, etc.; that he did assess it, and in his sister's name, but he allowed it to be sold, and at the tax sale he purchased the property, taking the title in his own name instead of in the name of his sister. Allowing it to be sold for taxes was done, as the brother professed, to defeat any claims through the absconding husband, who was then thought to be dead. He, the brother, even after the tax deed was executed to him and after his sister was adjudged insane, in talking to his other sister, the guardian, and appellee here, spoke of the land as his sister's. When R. S. Lewis died he devised all his lands to his wife, the appellant; and upon the will of her deceased husband the appellant based her sole claim to this land when the bill was filed. Pending suit, however, and after the absconding husband of the insane ward was located, appellant procured his deed to her of the land in question, and thereafter she attempted to set up that deed as a defense to this suit.
On the original hearing, we held that this deed passed a good title to appellant, and that this defense was made out. In this holding we were in error. This deed, under the undisputed facts in this case as we now hold, passed no title, either legal or equitable, because it was not executed in the manner required by our Constitution and statutes as to the alienation of the homestead of the husband; and there is no pretense that the deed of the husband was so executed. Const. § 205; Code, § 4161. The theory upon which, on the former hearing, we held, the deed to be valid is well stated by Justice McClellan in the opinion on that hearing, where the authorities are cited in support of the holding. This theory, in short, was that the land, upon being conveyed by the absconding husband, ceased to be impressed with any homestead rights on the part of either the husband or the wife — on the part of the husband, because he had abandoned the homestead and absconded, with no animus revertendi; on the part of the wife, because she had left it and remained away continuously for a term of years, being all the while confined as a non compos mentis in an insane asylum. The basis error in the former holding was, in applying the law of abandonment of homestead, to facts which did not constitute an abandonment, so far as the wife was concerned, nor subject the homestead to alienation by the husband without his complying with the Constitution and with the statutes governing such alienation. We are now dealing with the wife's homestead rights, and not those of the husband. In the very recent case of Winkles v. Powell,
"It results from these principles that the husband may, without the wife's consent, abandon the homestead, and by so doing deprive it of the privileges and free it from the restraints attached to it by law. It is clear, therefore, that had Powell simply abandoned his home in Marshall county, and acquired a home in Winston county, which he invited his wife to share, her refusal to do so, and her continued occupancy of the former home, would not have preserved the homestead character of such former home, and he could have alienated it without her signature or assent, subject, of course, to her inchoate right of dower. But the record shows that he permanently abandoned both his home and his family; and so far was he from desiring the further *114
presence of his wife that in less than a year he took another woman and installed her in the new home which he acquired. In accordance with the spirit and purpose of our homestead laws, we are of the opinion that the husband could not thus abandon the homestead occupied by himself and his wife, and, while she continued to occupy it as her home, and was excluded from his presence and his home elsewhere, thereby empower himself to convey it away without her lawfully expressed consent. And the principle of this view has been approved by the courts of many states. 21 Cyc. 597; [Jerdee v. Furbush,
The difference between the facts of the Winkles-Powell Case and those of the case in hand is that in the former the wife remained on the homestead, while in this instance she left it. But she did not leave it voluntarily; she was adjudged insane, and removed by force, though in accordance with law; hence this case presents the question: Does such a leaving constitute an abandonment by the wife? We hold that it does not. Actual occupancy, in such cases, is not required to preserve the homestead rights of the wife whose husband has abandoned her and absconded, leaving her without aid or assistance from him in her sad and unfortunate condition. It would be unconscionable to hold that he could, by such inhuman conduct, deprive her of the only source of support which he had left her; and so we find the justice of the case in this instance to be the law of the case. The principle of law and general rule in such cases seems to be that occupancy of the homestead is necessary to the survival of the homestead rights; that the protection of the property as a homestead continues only so long as the occupancy continues. This general rule, like most rules of its kind, however, has its exceptions, limitations, and qualifications; and the case in hand falls within one of these exceptions. Abandonment being a question mainly of intent, no uniform rule can be enunciated as to what facts will constitute the act. This court has said that abandonment includes both the intention and the external acts by which the intent is carried out. Tennessee, etc., Co. v. Taylor,
" 'Abandonment includes both the intention to abandon and the external act by which the intention was carried into effect,' and 'as intent is the essence of abandonment, the facts of each particular case are for the jury.' 1 Amer. Eng. Encyc. of Law, p. 1, notes and authorities; Wyman v. Hurlburt,
Hence involuntary or compulsory abandonment of, or absence from, the homestead will not be held to constitute an abandonment or a forfeiture or waiver of the homestead rights. Of such character would be the abandonment charged in the case at bar, and similar cases, where the occupant was adjudicated insane, and removed to and detained in an asylum. Burkhardt v. Walker Son,
"If a wife is compelled through fear of violence at the hands of her husband to live at a place other than upon the homestead, or if her absence is caused by any unlawful act committed by him, her enforced absence will not be held to be an abandonment or forfeiture of her rights in the homestead, where it appears that she never had any intention to relinquish the same. Vanzant v. Vanzant,
"In Blumer v. Allbright,
There is another general rule, to the effect that the abandonment of the homestead by the husband as the head of the family, and the acquisition of another residence or homestead, terminates the right of the wife, as well as that of the husband, therein as to a homestead. An exception to this rule, however, is that if the abandonment be not in good faith, and to acquire a residence, if not a homestead, for the wife and family, but is in fact a desertion of them by the husband and father, then it does not impair or forfeit the rights of the wife. He does not, in such case, act for them, but against them. He is not allowed thus to defeat the object and purpose of the homestead laws, such purpose and object being the protection of the family. The homestead laws, as a system, including even those exempting the homestead to the husband, are not for the sole benefit of the husband, but are for the benefit of the wife and children as well, even during the husband's life. Witherington v. Mason,
*115
11 Am. St. Rep. 41; Kennedy v. Tuscaloosa Bank,
This court has uniformly held that the homestead laws are to be liberally construed, to the end of advancing their beneficial objects, by giving effect to the manifest purpose of the Constitution makers and of the Legislature in conferring the rights. Thompson v. Thompson,
"The purpose and object of the homestead provision being the protection and maintenance of the wife and children against the neglect and improvidence of the husband and father, the statutory enactments in aid of such provision and supplemental thereto are to be given a liberal construction, so that the purposes intended by the laws shall the better be advanced and secured. And so the courts employ the most liberal and humane rules of interpretation to insure the unfortunate debtor, and his equally unfortunate but more helpless family, the shelter and influence of home."
This court has spoken as follows on the subject:
"Their obvious purpose is to secure to each family a home and means of livelihood, irrespective of financial misfortune, and beyond the reach of creditors; security of the state from the burden of pauperism, and of the individual citizen from destitution. Such statutes are entitled to a liberal construction, a construction in conformity with the benevolent spirit which moved their enactment." Hines v. Duncan,
This court is thoroughly committed to the doctrine that a deed from an absconding husband under circumstances such as marked that in the instant case, is absolutely void and of no effect. In the case of Thompson v. New England Mortgage,
"The purpose of the statutes in securing an exempt homestead to every resident of the state, and in requiring the wife's voluntary signature and assent to any alienation thereof when belonging to the husband, is to protect the wife, and through her the family, in the enjoyment of a dwelling place. Turner v. Bernheimer,
It therefore follows that appellant acquired no title by virtue of the deed secured after this suit was brought; and, as we held on the original hearing that her husband acquired no title by the tax deed, it follows that she acquired no title by virtue of his will, and therefore showed no title to the land in question.
And as under the undisputed facts appellant had received the income and profits from the land since the death of her husband and he had received such rents and profits for a period during his lifetime, under the circumstances of the disability of the insane ward, each of them should have accounted to the guardian of the non compos mentis, under whom the rents and profits were received.
It follows that the decree of the chancellor was in all things correct, and that it must be affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, GARDNER, and THOMAS, JJ., concur. McCLELLAN and SAYRE, JJ., dissent.
Dissenting Opinion
In Witherington v. Mason,
"The homestead right is of constitutional or statutory creation, and its nature, character, and extent depend on the law creating and defining it. The exemption is a personal right conferred on the debtor, the benefit and enjoyment of which inures to his family, through and by the exemption in his favor. The right and estate of homestead are in the husband, inwhom the title to the property resides. Neither theConstitution nor the statute confers on the wife any right orestate in the homestead during his life, but a mere power toprevent its alienation. She may occupy and enjoy it with her husband by his permission, but he has the right to abandon it at pleasure." (Italics supplied.)
This pronouncement was recently expressly recognized in Winkles v. Powell,
By amendment of the complainant's bill W. F. Sparling was made a party complainant. In this amendment it is averred (transcript, p. 9) "that the complainant W. F. Sparling is a resident of Spartanburg county, S.C. * * *" In the same amendment (transcript, pp. 10, 11) it is averred that W. F. Sparling, and not Mrs. Janet A. Sparling, was the owner in fee of the property in question, and that Janet A. Sparling was in "possession and enjoyment under the seisin of her husband, W. F. Sparling, as her home" (transcript, pp. 54, 55). In W. F. *116 Sparling's verified answer to interrogatories propounded by the respondent (transcript, p. 19) he gave Spartanburg, S.C., as his place of residence; and, in response to the second interrogatory (transcript, p. 19), which reads:
"State how long you have lived in Spartanburg, S.C., and state what other places you have lived in since leaving Birmingham, giving the length of your residence at each * * * place"
— he said:
"Eight or 10 years; Kingston, N.Y., a few months; Columbia, S.C., about one year; Camden, S.C., about four months; Lancaster, S.C., about one year; Douglass, Ga., a few months; Douglasville, Ga., a few months; Boliver, Tenn., about six months; Anniston, a few months; Passaic, N.J., and Winsted, Conn., South Point, Conn., and perhaps other places, for a short time each."
In the deposition of W. F. Sparling, taken by the complainants, he testified (transcript, p. 62) that he resided at Spartanburg, S.C.; and in answer to interrogatory 5 (transcript, p. 63) he testified that he had not resided in Birmingham for some 20 years. The whole deposition of Sparling discloses the recognition of the fact by the complainants that W. F. Sparling had not resided in Alabama for many years before the quitclaim deed to Mrs. Lewis was executed by him, for a consideration, on April 18, 1910; that he was not a resident of Alabama for some years before, at the time of and since Mrs. Janet A. Sparling was adjudged insane and committed to the State Hospital for the Insane, where she has remained incurably insane. The majority of the court have held, in granting the rehearing and affirming the decree below, that the premises described in the quitclaim deed were impressed, continued impressed with a homestead character, and that the quitclaim was void because it was not, as Code, § 4161, requires, jointly executed by the wife, Janet A. Sparling. The statute (section 4161) follows section 205 of the Constitution, which prescribes a limitation upon the right to convey or incumber thehomestead. That section (205), so far as presently important, reads:
"Every homestead, not exceeding eighty acres, and the dwelling and appurtenances thereon, to be selected by the owner thereof, and not in any city, town or village, or in lieu thereof, at the option of the owner, any lot in a city, town, or village, with the dwelling and appurtenances thereon owned and occupied by any resident of this state, and not exceeding the value of two thousand dollars, shall be exempt from sale on execution or any other process from a court. * * * Such exemption, however, shall not extend to any mortgage lawfully obtained, but such mortgage, or other alienation of saidhomestead by the owner thereof, if a married man, shall not bevalid without the voluntary signature and assent of the wife tothe same." (Italics supplied).
In Turner v. Turner,
"Homestead ex vi termini means the family seat or mansion, and the change of verbiage in our statute by the codifiers, in compiling the Code of 1886, whereby they omitted from section 2507 (now section 4160, Code of 1907) the phrase, 'owned and occupied by any resident of this state' was not intended to affect the well-settled rule recognizing actual occupancy, except in the single case stated (now and then as provided in Code, § 4192, and not important to the question under consideration), as an essential condition of a valid homestead exemption." Land v. Boykin,
In the last-cited decision it was said, by way of approving quotation:
"A man's homestead must be his place of residence; the place where he usually sleeps and eats; where he surrounds himself with the ordinary insignia of home, and where he may enjoy its immunities and privacy."
Actual occupancy, coincident with ownership, is an essential prerequisite to the establishment and retention of a homestead in this state; with the single exception of temporary absence contemplated in Code, § 4192. Boyle v. Shulman,
"It is legally impossible to have two homesteads at the same time." Barber v. Williams,
As the Constitution, statutes, and decisions all pronounce, it is the owner alone who can give, who has the capacity to give, a lot or tract of land the character of a homestead.
In this instance the owner, W. F. Sparling, is averred in the amended bill to be a nonresident of Alabama. The undisputed evidence shows that he was, when this quitclaim deed was executed, not residing in Alabama, and had not resided in Alabama for over 10 years. To affirm, in such circumstances, that W. F. Sparling had from the year 1900 to and including 1910, or subsequently, a homestead in Alabama is but to assert a result that immediately violates the Constitution and the statutes which plainly deny the right to a homestead to one who does not reside in Alabama. It is only by pronouncing, in effect, that one who actually resides in South Carolina is still a resident of Alabama that our Constitution and statutes can be accorded the respect their prescriptions and mandates require. The opinion in Winkles v. Powell,
"Occupancy as a home, as a dwelling place, is the fact which impresses upon land the character of a homestead, drawing it within the influence of constitutional or statutory provisions, exempting it from liability for the payment of debts, or from subjection to administration, or intercepting the descent to the heir"
— and, it may be added, in accordance with abundant authority afforded by Constitution, statutes, and decisions: Clothing the wife with the "mere power to prevent its [homestead's] alienation" by refusing to join in its conveyance or incumbrance. The body of our law on this subject has been built up and repeatedly reaffirmed by Constitution makers, legislators, and judges of highly esteemed wisdom, legal learning and sensitive regard for every moral element of the social order; and this should at least insure caution and conservatism before overturning the results of their mature judgments.
In view of the conclusion reached in Winkles v. Powell, supra, predicated of the fact that the husband left the original abode because of the infidelity of the wife, and himself took another as wife under the mistaken notion that he had been divorced from the first wife, it is interesting to contrast therewith the expressions of this court in Nolen v. Doss,
"If a husband or father, entitled to a homestead or other exemption, absconds or abandons his family, or leaves the state, or is insane, or is confined under a charge or conviction for felony or misdemeanor, or is under any other disability or inability, the wife, or if there is no wife, the minor child or children, residents of this state, with the intention so to continue, shall be entitled to interpose any and all claims of homestead or other exemption which the husband or father could have interposed; but the right to such exemptions shall continue only so long as the wife and minor child or children, or either, shall remain bona fide residents of this state. In the event of the death of the husband or father pending any contest of a claim of homestead, or other exemption, such contest may be revived in the name of the widow, if there be one, or if there be none, in the name of the minor child or children, if there be such; but if neither widow nor minor child is left surviving, the claim of exemption shall abate, and the property ordered sold for the satisfaction of the process. No judgment of condemnation or sale shall be made under this section till the wife, or if there is no wife, the minor child, shall have had 20 days' written notice of the levy of the execution, to be served by the sheriff."
It will be observed that this section (4190) has no reference whatsoever to the alienation of the homestead, a subject to which section 205 of the Constitution and section 4161 of the Code have particular reference. The idea underlying the provisions of Code 1907, § 4190, was stated in section 2837 of the Code of 1876, embodying section 20 of the act approved February 9, 1877 (Gen. Acts 1876-77, pp. 32, 40), which was entitled "An act to regulate property exempted from sale for the payment of debts and from administration, and to provide for the ascertainment and protection of such exempted property." True to the title quoted, which had no reference to the alienation of the area that had been given, by the owner (not the wife), the character of a homestead, section 20 of the act cited (Code 1876, § 2837) provided that if the defendant inthe execution was "physically or mentally unable to make claim or be absent from the county at the time of the levy and does not return two days previous to the sale, then some other person having knowledge of the facts" might make the claim for him. By the act approved March 1, 1881 (Gen. Acts 1880-81, p. 121), it was provided:
"That where any married man, who is a resident of this state, shall abscond or leave the state and abandon his family, leaving in the state a wife, or wife and a minor child or minor children, the wife so left shall have the right to claim,in the name of her husband, all exemptions which he would be entitled to claim had he not absconded or left the state, and if there be a minor child or minor children, and no wife, the guardian or custodian of such minor child or minor children shall have the right to claim such exemptions for such minor child or children, in the name of the father of such minorchild or minor children; the claims in such cases to be conducted in the same manner as exemptions are now claimed under the Code.
"Sec. 2. * * * That the exemptions secured by the first section of this act shall continue only so long as the person or persons for whose benefit the exemption is claimed shall remain bona fide a resident of this state, with the intention *118 to so continue, and the persons claiming such exemptions shall in every case make affidavit before some officer authorized to administer oaths, that the person for whose benefit such exemption is claimed is a bona fide resident of this state, and intends to so remain."
This act of 1881 became section 2537 of the Code of 1886, and section 2063 of the Code of 1896. It is manifest from the terms employed in the act of 1881 that the purpose was to invest the wife and minor children, or either, with the power to claim, to assert all the exemptions the absent husband or father would have been entitled to claim, against process to enforce a demand against the absent exemptioner. The same notion pervaded this law when it was made section 2537 of the Code of 1886; and the idea was emphatically expressed by the provision for the sale of the property "for the satisfaction of the process." The identical purpose was entertained in the codification of 1896, section 2063. The like law, when carried forward into section 4190 of the Code of 1907, had added to it by the Code committee of the Legislature these terms:
"No judgment of condemnation or sale shall be made under this section till the wife, or if there is no wife, the minor child, shall have had twenty days' written notice of the levy of theexecution, to be served by the sheriff." (Italics supplied.)
The last promulgation of the substance of the act of 1881, through section 4190 of the Code of 1907, admits of no sort of doubt that its purpose and effect, when applicable, was to invest the wife or minor children of the absent husband or father with the means to assert the exemptions from appropriation by process running against the absent husband or father, and that it was in no degree contemplated by the lawmakers that the provisions of this section (4190) should or could have any possible effect upon the alienation (Const. § 205) of the area that the husband or father, before he left the state, had, as owner, impressed with the character of ahomestead.
In addition to the demonstration the above-recited history of section 4190 and its plain terms make of the utter mistake to suppose that the provisions of section 4190 apply otherwise than to claims of homestead exemptions from condemnation under process, reference may be made to Garland v. Bostick,
The Constitution (section 205) has itself expressly undertaken to prescribe the limitation, with respect to the joinder of the wife in the conveyance or incumbrance of the homestead; and this limitation, so far as alienation is concerned, is predicated of the homestead to which that section refers (Turner v. Turner,
My judgment is that the previous order of reversal of the decree and the dismissal of the bill should not be annulled; and hence that the rehearing should have been denied, since, if the premises described in W. F. Sparling's quitclaim deed to appellant was not a *119 homestead, and, hence, the joinder of the wife in its alienation was unnecessary, the conveyance was valid without her signature in virtue of Code, § 4495.
Addendum
I agree that Mrs. Sparling, upon the abandonment of herself and home by her husband, became entitled, under section 4190 of the Code of 1907 and Winkles v. Powell,
The bill in this case was primarily for a settlement and accounting for the rent and income from the land which was collected by the respondent and her husband, who took charge of the property for and in behalf of his insane sister, and I fully agree that the same should be accounted for less taxes and other proper expenses incurred, and that the decree in this respect should be affirmed. I also agree that the tax purchase was made by him for the benefit of his sister, and that if he acquired a title under said tax sale, it should inure to the benefit of his said sister, but this question is settled by the general concession that the tax sale was void. The court did not agree, however, with the contention that the deed acquired from Sparling after the suit was brought should inure to the benefit of Mrs. Sparling upon the idea that Mrs. Lewis was the agent and trustee for the said Mrs. Sparling. That relationship had terminated before this suit was brought. Nor does the court agree that the deed was procured through fraud practiced upon the said J. A. Sparling as contended for in the amended bill; but the court does hold that the said deed was void as contended for by the complainants, though for a different reason than the one assigned.
The complainant's ward was entitled to an accounting and settlement and to the possession of the property, and the only way that her relief could be defeated was to show that the respondent's husband owned the property, and was not therefore the agent of his insane sister, and which was not done. On the other hand, the proof shows that Lewis acted for his sister, recognized that it was her property, and in fact said that he let it be sold for taxes in order to improve her claim or title against that of her husband, and it would be inequitable and unjust to permit him to enjoy the fruits and benefits of his agency simply because his sister was not mentally able to bring him to an accounting.
MAYFIELD, SOMERVILLE, GARDNER, and THOMAS, JJ., concur in this explanation or qualification. *120
