109 Ala. 366 | Ala. | 1895
The complainants held and owned a promissory note due from the respondent, which contained a waiver of all right or claim to any exemption of personal property. The respondent admitted a balance due on the note, and also admitted the charge of insolvency. The bill averred, and the averment was admitted as true, that, after the contraction of complainants’ debt, the respondent purchased a lot of land, paid for it with his own money, the title to which was taken in the name of his wife. This deed was duly acknowledged by the grantor, and recorded. From his own means he erected on the lot a dwelling house, which at the time of the filing of the bill was occupied by respondent and his wife, and claimed by respondent as his homestead. The facts showed that the husband had his wife execute to him,in writing, a secret agreement, by which she agreed to hold the title to the land subject to his disposition, and to convey the title as he might direct. This instrument was not recorded with tlie degd. The one material question presented by the case is, whether an insolvent debtor, having money or personal property which is liable to his debts and ought to be applied to their payment, but upon which no lien has been acquired, can invest the same in a homestead, and thereby defeat his creditor. Fully recognizing the rule that so long as a creditor can trace the property or mone_y of his debtor, liable to his demand, which has been fraudulently disposed of, he has the right to do so, and to subject them to his demand, we arc of opinion the rule does not apply when the money or property, before lien acquired, is invested in a homestead, which bylaw is exempted from the demand. Parties contract with reference to the existing law. The creditor knew that the homestead was exempt by law, and also a certain amount of personal property. He provided by contract against the claim of exemption as to personal property. He might have provided also against the claim of a homestead exemption. This he failed to do. Hawing acquired a homestead by the investment of money upon which there was no lien or incumbrance, the law declares in effect
The evidence shows that the agreement of the wife to hold the title to the laud for the husband was a part of the deed of conveyance to her, and the two must be taken and construed together as one instrument, although it may not have been executed by her in such firm as to make it a valid contract of hers, if it stood alone. Construing the two instruments as one, the husband being in possession, and claiming it as a homestead, since its acquisition, to which his wife assented and conceded, he acquired and owned such an interest in the property as to entitle him to assert a homestead. claim against the claim of the creditor.
The decree of the Chancery Court is in accordance with these views.
Affirmed.
