134 Ala. 623 | Ala. | 1902
The undisputed facts in this case show that the lease under which the complainants claim was executed by Burns and wife to Nimmocks & Melvin on December 21st, 1896, and that at this time Burns and wife were residing upon the land, which had been entered by Burns under the homestead law of the United States, the same being government land. That Burns had not at the time, and not until two days later, on De
It is conceded in argument that Avithout the Avife’s acknoAvledgment taken separate and apart from the husband, the lease Avas void, but it is contended that the subsequent acknowledgment validated Avhat was otherwise a void deed. If the lessors, Bums and' Avife, at the time, of the execution of the lease, had been clothed with the right to make the same, this contention would be sound and find support in adjudication by this court. But such is not the case before us. The lease was void for another reason than that of a lack of sufficient acknowledgment by the Avife for the conveyance of the homestead. At the date of its execution, the homestead entry not having been perfected, Burns was prohibited under the homestead Liav of the United States on grounds of public policy from conveying or making any contract to convey any interest in the land, and any conveyance by him Avas absolutely void. — Anderson v. Corkins, 135 U. S. 483; Cook v. Mulloy, 101 Ala. 178; Woodstock Iron Co. v. Strickland, 121 Ala. 616. The subsequent acknowledgment by Burns and Avife Avas nothing but. a formal admission by them of their execution of the lease of December 21st, 1896. This certainly could give no more validity to the deed than if the acknowledgment had been made at the time of its execution, and yet if it had been so made, the lease, notwithstanding, would have
The cause was submitted for final decree1 2upon the pleadings and proof, and a decree was rendered granting tile complainants relief prayed for. For the. reasons above given, the decree will be reversed, and a decree will be here1 rendered dissolving the injunction and dismissing complainants’ bill.
Noversed and rendered.