69 Ala. 506 | Ala. | 1881
The bill in this case is one for specific performance. It is filed by the appellant, Anna W. Munchus, as the widow of J. K. Munchus, deceased, to compel the appellee, Emily E. Harris, to convey to her the title of decedent’s homestead, which he is alleged to have purchased, but not entirely paid for, prior to his death. The offer of the bill is to pay the unpaid balance of the purchase-money, and the prayer is for a conveyance by the vendor to appellant. It is shown that the decedent left surviving him his widow, and three adult •children. The latter, though, heirs, are not made parties, but no objection seems to have been taken on this ground.
As the intestate died in October, 1873, the rights of the appellant are to be determined by the act of April 23d, 1873, .which was the law in force at this date, regulating the subject ■of exemptions, although, as against creditors of the decedent,
The theory of the bill is that the title of -which the intestate died seized vested absolutely in the widow, and that the heirs-had no interest. Conceding that the allegations of the bill were true, they showed an equitable title in the land to have been in the deceased, under a contract of purchase, and this would be that character of estate from which a homestead could be carved, and which wotild be protected from levy and sale as against third persons.— Weber v. Short, 55 Ala. 319; Blue v. Blue, 38 Ill. 10; Thomp. on Homestead &Ex. §§ 170-1. Nor was it necessary, as the decree of the chancellor assumes, that the complainant should have been in actual occupancy' of the property at the time of the filing of the bill. If the decedent-was a resident of the State, at the date of his death, and then occupied the house and lot in question as a homestead, this-would fulfill the requirements of the statute, so far as concerns, at least, the creditors of the deceased. — Green v. Grow, 17 Tex. Rep. 180.
There is á fatal variance, we think, between the allegations of the bill as to the complainant’s ownership or claim of interest in the property in question, and the proof in the case. The claim set up in the bill is the entire ownership of the decedent’s-title of which he died possessed, free from the claim of the’ heirs. The ownership proved is only a right on appellant’s part to retain the homestead, as against ordinary creditors and against-the heirs, until the insolvency of the estate is ascertained.
The exemption law in force at the time of Munchus’ death provided for a homestead exemption for the benefit of the widow, and any minor child or children, who might survive him, and allowed the premises, not exceeding two thousand dollars in valué, to be “ retained ” by them until it was “ ascertained whether the estate was solvent or insolvent;” and if. the estate was proved to be insolvent, it rested in them absolutely. — Acts 1872-3, §§ 3 and 15, pp. 65, 69; Miller v. Marx, 55 Ala. 322.
It was decided, at the present term, in the case of Baker v. Keith, that the ascertainment of insolvency, referred to in this-act, is a regular declaration of insolvency by proceedings in the probate court, judicially/ ascertained according to the statutory practice regulating such a procedure. We adhere to the rule there announced. There may, perhaps, be cases of collusion,, or such gross dereliction of duty on' the part of an administrator so closely allied to fraud, as would, on proper averment and proof, take a ease out of th,e operation of this rule, and dispense with the necessity of an actual declaration of insolvency.. This point is not, however, before us for decision.
As these defects may be remedied possibly by amendment, it was proper to dismiss the bill without prejudice, and the chancellor having failed to do this, we feel it to be our duty, pursu.ant to the usual practice of this court in such cases, to reverse the decree of the chancellor, and render the decree here which he should have done. The decree is accordingly reversed, and •the bill is here dismissed, at the cost of the appellant, without prejudice to the rights of complainant or other interested parties. — Cameron v. Abbott, 30 Ala 416.
