O'Rear v. Jackson

| Ala. | Nov 15, 1899

DOWDELL, J.

— This is a statutory action of ejectment, commenced by the appellee, plaintiff in the court, below, for the recovery of certain real estate described in the complaint. The plaintiff bases her right of recovery upon a title acquired by descent from her ancestor, one Charles Dugan. The case was tried upon an agreed statement of facts, which is set out in the record. It is shown by this agreed statement that Dugan, the ancestor, died in possession of the land in controversy in June, 1889, leaving surviving him his widow, Martha Dugan, and, as his only heirs at law, Bettie Jackson, the plaintiff, and Lewis Jackson. The land was the homestead of Dugan at the time of his death, and neither of his children were minors. In May, 1896, the-land was set apart to the widow, Martha Dugan, as her homestead exemption, by a regular proceeding had. in the probate court of Montgomery county. In November, 1896, Martha Dugan sold and conveyed the land to the defendant, IV. (). O’Bear, who went into possession under said sale. Subsequent to this conveyance,, and before the commencement of this suit, Martha Dugan died.

Upon the death of the ancestor, the legal title to tiiereal estate descended to his heirs at law, subject, however, to the homestead exemption of the widow. This homestead right of the widow is determined by the law in force at th.e time of the death of the husband. — Davies v. Davies, 63 Ala. 293" court="Ala." date_filed="1879-12-15" href="https://app.midpage.ai/document/daviss-admrs-v-davis-6510435?utm_source=webapp" opinion_id="6510435">63 Ala. 293; Skinner v. Chapman, 78 Ala. 376" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/skinner-v-chapman-6512255?utm_source=webapp" opinion_id="6512255">78 Ala. 376; Munchus v. Harris, 69 Ala. 506" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/munchus-v-harris-6511184?utm_source=webapp" opinion_id="6511184">69 Ala. 506.

It becomes material, then, to determine the extent, nature and character of the homestead exemption of the-widow at the time of the death of the husband in June,. s1889. It is to be observed that in this case there was no-administration upon the estate of Charles Dugan and consequently no ascertainment and decree of insolvency of his estáte.' The homestead set apart to the widow under- section 2543 of the Code of l886, when there is no ascertainment and decree' of' insolvency, vests in the widow no greater estate than for the life of the widow, the fee going to the heirs at law. — Smith v. Boutwell et al., 101 Ala. 373" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/smith-v-boutwell-6515482?utm_source=webapp" opinion_id="6515482">101 Ala. 373.

It is contended by counsel for appellant that the homestead exemption in the present case, set aside to the widow, was so set apart under the act of February 12th, 1885, (Session Acts 1881-5, p. 114, as amended by the act of February 28th, 1887, Acts 1886-7, p. 112), .and that an absolute title to the land vested in the widow. This contention necessarily involves the asser- • tion that the act of February 12th, 1885, was in force .at the time of the death of the husband, Charles Dugan, in June, 1889, and this must depend upon one of two propositions: (1) that the act itself was adopted into the'Code of 1886, or (2), if not adopted into the Code, it must have been preserved by some act of the legislature at the session in which the Code of 1886 was adopted. All general statutes, except such as were passed at the session of the general assembly at which the Code Avas adopted, not contained in the codification, Avere repealed. The act of Feb. 12, 1885, was not brought forward and adopted into the Code, and Avas therefore repealed, unless it Avas preserved by the amendatory act of Feb. 28, 1887. This act Avas entitled, “An act, to amend section one of an act, To set apart to AvidoAArs and minors the property exempt from administration and debts under the laws of Alabama Avithout any administration thereon; approved Feb. 12th, 1885.” It aaTH be observed that this act purports to amend only section one of the act of Feb. 12, 1885. This section one, as amended, Avas copied into the Code of 1886 under a marginal note on page 570. The act of Feb. 12, 1885, contained four sections. Section two determines the character and extent of title that vested in the AvidoAV under the provisions of said act setting apart the homestead exemption. The amendatory act in question, • and the act by which the Code of 1886 was adopted, were passed on the same dav —Feb. 28,1887.

The rule seems to be that parts of the old Iuav Avliich are retained and brought fonvard in the amendatory act are not a re-enactment of the parts so retained of .the old act, but simply a continuation of those portions of the original statute. Black on Interpretation of Laws, p. 359. On page 358,. it is said by the same law-writer : “An amendment of a section of the statutes prescribing the practice in the circuit courts does not by implication amend another section wherein a similar practice has been prescribed for justice courts.” . It is certainly competent for the legislature to have preserved and continued in force section one of the original act by amendment and at the same time to have repealed the remaining sections of that act by express provision. It was known to the law-making power that only such general laws as were adopted into the Code, other than those passed at the same session'in which the Code was adopted, would be continued of force, and it is reasonable and fair to presume that at the time of the amendment of section one of the original act in question, if the-legislature had intended that the remaining sections of such original act should be continued in force, it would have manifested such intention either by adoption of the-same into the Code or by some express reference to the-same in the amendatory act. Section two of the act by which the Code of 1886 was adopted provides as follows : “No act passed at the present session of the general assembly shall be repealed or affected in any manner by the adoption of this Code, but all acts amending-sections of the Code of 1876, which sections have been-incorporated in this Code, shall be printed in the place-of and as such sections.” The question as to whether a -simple amendment of another--act of the legislature-would fall within the saving provisions of the act adopting the Code is not free from doubt, as the amendatory act is neither the passage of an original-law, nor a reenactment of the parts of the old Iuav retained in the amendment. The issues, however, involved in this suit, do not require a decision of this question, and Ave leave-the same undecided. But as the present amendment is expressly confined to section one of the act of Feb. 12, 1885, Ave are of the opinion that the remaining sections of that act Avere repealed by not .having been adopted into the Code. We therefore conclude that the question here invoked as to the extent of the estate that vested in the AAidow by the proceeding had in the probate court in regard to lier homestead exemption to the land is governed by section 2543 'of the Code of 188(5.

The appellant by the conveyance of the widow could acquire no greater title or interest in the land than she; owned. The title of the widow7 was limited to a life interest and terminated upon her death.

There is no error in the record and the judgment of the circuit court is affirmed.