94 So. 600 | Ala. | 1922
Lead Opinion
Barrow and Wiggins brought suit against W. E. Sowell and W. F. Sowell on a promissory note given by them, waiving exemptions as to personal property. There was a judgment by default, damages assessed at $348, and judgment was rendered against the defendants therefor, with waiver of exemptions as to personal property.
While that suit was pending and before judgment was rendered, the plaintiffs in aid thereof obtained a writ of garnishment against the People's Bank of Red Level for it to answer whether it was indebted, etc., to the defendant W. E. Sowell. The garnishee, the bank, answered under oath that it was not indebted to the defendant W. E. Sowell. This answer was contested by the plaintiffs, and thereupon an issue was made up under the direction of the court, in which the plaintiffs alleged in what respect the answer was untrue. Section 4325, Code 1907.
The plaintiffs contested the answer of the garnishee on the grounds that the defendant W. E. Sowell, while indebted to them as averred in the complaint, deposited with the garnishee in the name of his wife $1,000, which was his and not his wife's property; that it had not been paid out by the garnishee when the writ was served on it, and this money was deposited in her name as a mere subterfuge, or for the purpose of hindering, delaying, or defrauding plaintiffs in the collection of their debt; and plaintiffs also allege in another ground of contest that the deposit of that sum in his wife's name was without consideration, and a mere gift from him to her, and was void as to plaintiff's debt.
The garnishee took issue on those grounds of contest; and also replied specially to each that it was in the general banking business, and the entire deposit, before making its answer to the writ of garnishment was paid out by it on checks of the wife without any notice or knowledge that the money did not belong to her or that it was deposited by the defendant in her name as a mere subterfuge or with intent to hinder, delay, or defraud plaintiffs in collecting their debt.
The court gave the general affirmative charge with hypothesis in favor of plaintiffs, and refused to give a similar charge in favor of the garnishee. There was a verdict by the jury in favor of the plaintiffs, judgment thereon by the court, and from it the garnishee appeals.
The giving and refusing by the court of these two charges are 2 of the 51 errors assigned by the garnishee.
The following evidence was undisputed in this case: The defendants owed plaintiffs $348 on March 6, 1922. This debt was contracted by the defendants as evidenced by a note given by them, waiving exemptions as to personal property, on December 5, 1919. Suit was filed thereon by plaintiffs, and garnishment in aid of the pending suit was sued out on November 16, 1921, and the writ of garnishment was served on the garnishee on November 10, 1921. Judgment was rendered by the court in favor of plaintiffs and against the defendants on March 6, 1922, for $348 debt and $11.15 costs. This judgment contained a waiver of exemptions as to personal property by each defendant.
The defendant W. E. Sowell owned 79 acres of land in the county. It was all the real estate owned by him. He and his wife were citizens of Alabama, and had resided on this land for years as their homestead. It was used and occupied by them as a homestead when the debt of plaintiff was contracted, and until it was sold and conveyed to Foshee by them, and its value was $2,000
There were two mortgages on this land given by W. E. Sowell and his wife. Both mortgages were due. One was given to George M. Forman Co., which, with interest, amounted to $607; and the other was given to the garnishee, which, with interest, amounted to $323.31.
On November 15, 1921, W. E. Sowell contracted to sell the homestead, 79 acres, to D. R. Foshee for $2,000. His wife refused to sign the deed unless W. E. Sowell would consent for $1,000 of the purchase price to go to her to buy another home. He agreed for her to have one-half of the proceeds of the sale before she would consent to and before she executed the deed, and then she joined with him in conveying the homestead of D. R. Foshee. D. R. Foshee paid the purchase price by giving his check to the garnishee for $2,000 drawn on the garnishee, payable to the garnishee, dated November 15, 1921, and the garnishee paid out the $2,000, as follows: $323.31 to itself to satisfy its mortgage on the land; $607 to George M. Forman Co. to satisfy their mortgage on the land; and paid in cash to W. E. Sowell, the defendant, $69.69; and deposited in its bank to the credit of said Mrs. W. F. Sowell the sum of $1,000. None of the proceeds of *435 the sale of the 79 acres was paid to or went into the actual possession of the defendant W. E. Sowell, except the $69.69. The $1,000 was deposited to the credit of Mrs. Sowell as she directed. On November 21, 1921, she purchased another homestead and drew her check on the garnishee for $700 to pay for it, and on December 1, 1921, she drew by check out of the bank $50, and on December 9, 1921, she drew by her check out of the bank $250, the balance due her.
The defendant W. E. Sowell and his wife were and are resident citizens of Alabama. This was their homestead. It was occupied by them as such until it was sold and conveyed to Foshee. It did not exceed in area 160 acres, nor in value $2,000. It was exempt from levy and sale under execution for the debt of plaintiffs during his life and occupancy, and during the life of the widow, if she survived the husband, and minority of the children. Section 4160, Code 1907.
Mrs. Sowell owned no title or interest in the homestead during the life of the husband that she could sell; but he could not alienate it without her consent, expressed as the statute requires. Section 4161, Code. Any conveyance made by him to Foshee would have been void without her voluntary signature and assent in the manner required by section 4161 of the Code of 1907. She as his wife had the right to occupy it as a homestead with him during his life. Winkles v. Powell,
Under the undisputed evidence it was used by them until sold as a homestead, and its value was $2,000, and its area less than 160 acres. Under the undisputed evidence, she had a homestead interest in it. The wife, Mrs. Sowell, had a right of dower in and a homestead interest in this land before and when they conveyed it to Foshee. By their deed to Foshee she conveyed to him both of these rights or interests. Were they valuable, either or both of them? Were they or either of them a valuable consideration to support and sustain the transfer to her by her husband of the $1,000 of the purchase money for her executing the conveyance to Foshee of the land? Could the plaintiffs creditors of her husband, legally complain at her receiving the $1,000 for her signing the conveyance? These are questions presented by this record for us to answer.
In Gordon Rankin Co. v. Tweedy,
"The release by a married woman of her inchoate or contingent right of dower in lands owned by her husband, of which she is lawfully dowable, may constitute a valuable consideration for the execution of a deed by him to her. And the same is true, whether the release be made contemporaneously with the deed, or pursuant to a preceding agreement."
See, also, Hoot v. Sorrel,
"Yet such a contract must be reasonable and free from fraud in order to be sustained in equity, and should be especially scrutinized when made to a wife by a husband who is insolvent or in failing circumstances." Keel v. Larkin,
In 20 Cyc. 523, § b, headnotes 41, 42, and 43, we find this general rule:
"The release by a wife of her right of dower in the lands of her husband is a sufficient consideration to support a conveyance or transfer to her of property of her husband; and this is true whether the release be made contemporaneously with the conveyance or transfer or pursuant to a preceding agreement."
In 12 R. C. L. p. 515, § 45, headnote 6, we find:
"The relinquishment of the wife's right of dower is a good consideration for such a settlement as against creditors of the husband, to the extent of the value of the dower."
The wife is more vitally interested in fact and under the statutes as we have hereinbefore shown in the homestead of her husband than in her dower interest in the lands of her husband. If the rights of dower in the husband's land are valuable during his life, then the rights of the wife in the homestead of her husband are valuable during his life. She is entitled to use and occupy the home with her husband during his life (Witherington v. Mason,
In 20 Cyc. 524, e, we find this general rule:
"A release by a wife of her homestead right is such a consideration as will support a conveyance or transfer of property to her by her husband."
In 12 R. C. L. p. 516, headnotes 10 and 11, we find this general rule:
"The release by a wife of her right in a homestead is a good consideration for money paid to her, or a conveyance made to her, for a husband may always convey to his wife property exempt from execution."
In Fiedler v. Howard,
"The transaction was in no sense a gift to the wife. The release by the wife of her dower and homestead interest was a good consideration to support this arrangement. See Allen v. Perry,
The homestead rights of the wife in the home of the husband is valuable. She can veto its sale. She can occupy it jointly with him during his life. If he dies first, she can occupy it during her life.
In Kennedy v. First Nat. Bk. of Tuscaloosa,
"It resolves itself into this: That as to exempt property there are within the meaning of the statute of frauds, no creditors. Statutes creating exemptions were not designed to imprison the debtor in his homestead, nor to fetter the transfer of his chattels."
Here the homestead was exempt, and it was sold to pay two mortgages on it; $1,000 of the purchase money was delivered to the wife to secure her signature to the conveyance and which was to be used by her in buying another home; and within 10 days after the execution of the conveyance she invested $700 of the $1,000 in another home.
In Sanders v. Wallace,
"Dower attaches upon marriage to every estate of inheritance of which the husband is seized during coverture. It is inchoate until death. Neither the husband nor his creditor can deprive her of this right, against her consent."
The wife of Sowell had a dower interest, subject to the two mortgages, in this 79 acres of land. It was valuable. Neither the husband nor the plaintiffs, his creditors, could deprive her of this right in it without her consent. The husband was seized in fee of this 79 acres of land during his marriage; and under section 3812 of the Code of 1907, the wife had a dower right as well as under the evidence a homestead interest in it. As it was exempt as a homestead from the debt of the plaintiffs, they could not complain at the conveyance of it or at the amount of the purchase money under agreement allowed the wife for her dower interest or her homestead interest or for both interests. Wright v. Smith,
It is true in Tillis v. Dean,
"She acquired no title to or interest in the horse, by virtue of having given or parted with anything valuable for it, and the only interest she acquired in the animal was by way of gift from her husband."
This is contrary to the great weight of the authorities on that subject; it is in conflict with the letter and spirit of many decisions of this court, and the case of Tillis v. Dean,
This $1,000 under the agreement and the undisputed evidence in this case was the *437 property of Mrs. Sowell, and not the property of the defendant W. E. Sowell when the writ of garnishment was issued and served on the People's Bank of Red Level, the garnishee. This $1,000 of Mrs. Sowell was not subject to that writ of garnishment.
The court erred in giving the general affirmative charge with hypothesis in favor of plaintiffs, requested in writing by them. The general affirmative charge with hypothesis, requested in writing in favor of the garnishee, should have been given by the court.
There is no necessity for passing on the other errors assigned. They will hardly arise on another trial; if they do, they will be in a different form.
For the errors mentioned the judgment must be reversed, and the cause remanded.
Reversed and remanded.
SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., concur.
ANDERSON, C. J., and McCLELLAN, J., dissent.
Dissenting Opinion
Under the evidence in the record, the case is ruled by the sound, logical pronouncement in Tillis v. Dean,
"Even though the real estate, sold by appellee to Rogers, may have been his homestead, and, as such, exempted from subjection to legal process — a question which need not here be decided — when it was sold, and converted into money, by the voluntary act of the owner, and not by legal compulsion, the proceeds, or purchase money, was not necessarily exempt. The homestead exemption was thereby waived and gone, and did not follow the money. As was said in Scott v. Brigham,
No statute has been enacted since Giddens v. Williamson, supra, was decided in 1880, that has altered the rule of that decision. There is no statute making the proceeds of a voluntary sale of an exempt homestead subject to exemption as or for a homestead. On the contrary, the homestead exemption statutes have been three times readopted without any indication of legislative purpose to avoid the rule of Giddens v. Williamson. Upon the effectual execution, by Sowell and his wife, of the conveyance of the land constituting the homestead, and its delivery to Foshee and the grantee's payment of the purchase price, the homestead exemption theretofore existing immediately ceased and was lost. Sowell, defendant in the judgment, had waived any exemption of personal property in the instrument he had given the plaintiffs, appellees. To proceed upon any other premise in the adjudication of the rights of these parties is to extend the homestead exemption statutes to a subject-matter not within their purview, viz. the proceeds of a voluntary sale of real estate theretofore exempt as a homestead. Giddens v. Williamson, supra.
According to the undisputed evidence there was a voluntary sale of the homestead to D. R. Foshee for a consideration of $2,000 which was paid to Sowell through a check from D. R. Foshee to the People's Bank of Red Level, Robert Foshee, cashier of the bank (a different man from the grantee, D. R. Foshee), accepting the check; paying off Sowell's two mortgages of something over $900; and placing $1,000 to the credit of Sowell's wife, the cashier having suggested this procedure following the statement by Sowell that his wife would not sign the deed to D. R. Foshee unless this sum was applied to buying another home. With reference to an exempt homestead a wife's only power is to veto disposition thereof by withholding her consent, expressed as the statute required. As a homestead she has no interest or estate in the land. Hence, so far as Sowell's exempt homestead was concerned, no consideration whatever supported his delivery of the $1,000 of the proceeds to his wife; and his act in that regard operated as a gift only, as was well decided in Tillis v. Dean,
The garnishee's cashier, testifying as a witness, stated:
"At the time this writ of garnishment was served on me on the 16th of November, the whole $1,000 was there (meaning to the credit of Sowell's wife on the bank's books), and it had not been checked out."
This evidence was undisputed. Payment after writ of garnishment served is vain. Fowler v. Williamson,
"When all real estate of decedent set apart as homestead, title vests absolutely. When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title of such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not; but the title to the homestead shall not vest absolutely in them as against the other heirs of decedent until it is so set apart and until it is judicially determined that it is all the real estate owned by the decedent, and that it is not of greater value than two thousand dollars; but as against the creditors of decedent, the title of the homestead will be presumed to be absolute until it is judicially determined that it is not all of the real estate left by decedent, and that it is of greater value than two thousand dollars, and the homestead secured hereby shall be held and governed as in section 4196 (2069)."
So far as creditors are concerned, the effect of this statute is, as it avows, to invest the widow and any minor children of the decedent with the legal title to the homestead if it constitutes all of the real estate owned by the decedent. In this case there is no evidence whatever that Sowell has any children, much less minor children. According to this record, if Sowell had died possessed of the homestead — instead of conveying it to D. R. Foshee as was effectually done — it is manifest his widow would not have been entitled to dower in the land constituting the homestead; so for the reason that she would have succeeded, as a statutory heir (Code, § 4198), to the legal title to the entire premises, consisting, as it did, of all the real estate owned by Sowell, not exceeding 160 acres in area and in value not exceeding $2,000. Manifestly, dower cannot exist in land owned by the asserted doweress herself; and such would have been Mrs. Sowell's status with respect to this land in the event supposed. If she would not have been dowable in this homestead area — in the event of Sowell's death owning it — it would seem to be absolutely certain that she had no inchoate right of dower therein. The existence of an inchoate right of dower in lands in which there could be no dower consummated upon the husband's death is inconceivable. The cases of Chisolm v. Chisolm,
But even if this view was entirely ignored, there is in the record no evidence that Mrs. Sowell had the remotest idea that she was bargaining to anyone an inchoate right of dower in this land. All the testimony shows, or tended to show, is that she would not sign the deed to D. R. Foshee unless her husband would give her $1,000 of the proceeds with which to buy another "home." That this part of the proceeds was either promised or given to her as a consideration for her act in joining in the conveyance of the homestead to D. R. Foshee is not at all supported by the evidence. D. R. Foshee is not shown to have had any negotiation or dealing with Mrs. Sowell, nor is he shown to have had any intimation that she had exacted the stated promise of her husband, or that she would not sign the deed unless that promise was made to her. Another Foshee, the cashier, was so advised.
In the writer's opinion the judgment is not affected with error. *439
