69 Ala. 510 | Ala. | 1881
Lead Opinion
The plaintiff, Georgia Ann Slaughter, nee Latimer, asserts claim to the land in controversy under a deed executed by Joel Latimer in 1869. At that time Joel Latimer resided on the lands as a homestead, and continued to reside upon them until his death in 1874. When said conveyance was executed, Joel Latimer was a married man, and his wife did not join him in the conveyance. She survived him, and defends this suit as landlord, claiming a right to the possession. The tract of land sued for contains only seventy acres, and when the deed was executed, its value did not exceed five hundred dollars.
The deed from Joel Latimer to Georgia Ann Slaughter recites as its consideration, that he, Joel, in 1859 became administrator of the estate of said Georgia Ann’s father, of which she, the said Georgia Ann, was sole distributee, and that as such administrator he had received a large sum of money — $5,000 or more — which he had never paid or accounted for. This money was received by Joel in 1859, and the conveyance was made in partial payment of it.
It is settled by our decisions that the surviving widow’s claim of homestead exemption takes effect at the death of the husband, and is controlled by the law then of force, with the single qualification that, as against debts of the husband, it is governed in quantity by the law of force when the debt was contracted. Watts v. Burnett, 56 Ala. 340; Wilson v. Brown, 58 Ala. 62; Blum v. Carter, 63 Ala. 235; Giddens v. Williamson, 65
The present action, however, is brought, and can be maintained only on Mr. Latimer’s deed, which bears date in 1869. Ejectment can only be maintained on a legal title and right to the immediate possession. Mrs. Slaughter must recover on her deed, or she can not recover at all; and her right of recovery must date from the date of her deed. The law courts can deal only with legal rights, and can enforce only legal remedies. The fact that the land in controversy can, by proper proceedings, be made subject to a debt contracted in 1859, can not aid a legal title which dates only from 1869. Till that deed was made Mrs. Slaughter had no jus i/n re. As a muniment of title to support an action of ejectment, that conveyance was void under the constitution of 1868, because it was Latimer’s homestead, and was executed without the volunatary signature and assent of his wife. — Miller v. Marx, 55 Ala. 322; McGuire v. Van Pelt, Ib. 344.
Affirmed.
At a subsequent day of the term, the appellants, by their attorneys, Shaver & Hutcheson, applied for a rehearing, in support of which they contended as follows: (1). The debt in payment of which this deed was executed, was contracted prior to the constitution of 1868, namely, in 1859. The deed was made in 1869, after the constitution became binding. At the time the debt was contracted, no mode of alienation of +he homestead was prescribed, and the husband could convey without the wife’s signature and assent. To pronounce the deed void, because it does not conform to the mode of alienation prescribed by the constitution of 1868, is to make that provision of the constitution retroactive. But such a construction would impair the obligation of contracts, and hence, would be violative of the Federal constitution. — Thomp. on Horn. §§ 10, 11, 12, 292, 469; Gunn v. Barry, 16 Wall. 610; Edwards v. Kearzey, 96 U. S. 595. (2). “ A.conveyance to secure a debt which isprwileged against the homestead exemption will pass the right of homestead, although the signature of the wife is
Rehearing
In response to the application for a rehearing, we will add, that the ruling in this case does not go the length of holding that the plaintiff is without remedy to subject the land in controversy to her demand. It simply rules that she can not.m'lintaiu ejectment on the title she has. An action of ejectment is not so framed, as to furnish the necessary machinery for the purpose. The present suit shows the in aptness of
As we intimated in the opinion in chief, until Latimer executed the deed to Mrs. Slaughter in 1869, she had no title or •claim, legal or equitable, to the land. If she had then held an ■equitable title, equity would have enforced it, and converted it into a legal title. And if such had been the status of the land ■in controversy, Latimer might, by conveyance executed by him, .have clothed her with a legal title; for whatever equity will order to be done, it will approve as well done, when accomplished by parties themselves. But that is not this case. Before the •execution of Latimer’s deed, equity would not and could not have coerced the conveyance to Mrs. Slaughter. She had no right in the land. She had neither jus ad rem, nor jus in re ; and she had no lien on the land. The extent of her rights in the premises was, that so long as Latimer remained the owner of the laud, she could, by legal process, have it sold in payment of her demand.
We have been referred to the case of Strachn v. Foss, 42 N. H. 43. That was a proceeding in equity, instituted by the claimant of homestead exemption. It sought affirmative relief, and failed to show an equitable right to it. In the case of Wood v. Lord, 51 N. H. 448, the claimant of homestead was also the actor, and prayed relief. Those cases are unlike this. The petition for rehearing must be denied.
