118 Ala. 645 | Ala. | 1897
It is not contended by appellant that the cow, which was levied on and claimed, is subject to the execution. The only contention by him is as to the two ponies — that they are liable. The judgment against the defendant in execution contained a waiver of exemptions as to personal property.
It appears that the defendant in' execution, J. F. Dean, about two years -before the trial of this cause, owned 160 acres of land in Covington county, which he had entered as a homestead from the United States Government, and that this land was his homestead. It further appears, he agreed to sell or exchange 120 acres of this land to one Thomas for another 120 acres, which belonged to said Thomas; and that he agreed to sell the remaining 40 acres of the 160 homestead tract, to one Driggers for a horse. The bill of exceptions recites that the wife of defendant, the claimant, “refused to sign either deed, or to move off the homestead until the 120 acres procured from Thomas was conveyed to her,- and until it was agreed that she should have the horse, and that when she signed the conveyances, the horse was delivered to her, in order to obtain her signature to the deeds.” From this it appears that the two deeds, the one to Thomas for 120 acres, and the other to Driggers for the 40 acres, were executed at the same time, and that the defendant and wife did not move off or abandon the homestead until said deeds were each executed. The wife owned no title or interest in the homestead during the life of the husband, which she could sell. While he lived, her only right in the premises was to put a veto on the husband’s right to alienate the homestead, without her assent, expressed as the statute requires. — Cowan v. Southern R. Co., ante p. 554. The transaction, therefore, as to the sale of the 40 acres of land for the horse, was no more in substance than a sale of the same by the
It is well settled that a conveyance or gift of property exempt from liability for the payment of debts cannot be avoided or defeated as in fraud of creditors, unless such a gift or conveyance is of property which they can by legal or equitable process subject to the payment of debts.- — Alley v. Daniel, 75 Ala. 403, 406; 3 Brick. Dig. 491, §20.
When the husband voluntarily sold the 40 acres of homestead for the horse, the gift of the animal to his wife, without anything more, was no injury to his creditors. In Wright v. Smith, 66 Ala. 516, where a question similar to the one now before us was considered, the court, by Brickell, C. J., said: “The gift of such property is of no injury to creditors — it works them no wrong, and deprives them of no right, legal or equitable. As to such property, it may be well said, the owner has no creditors, and [has] the power of disposition as if he were free from debt. — Bump on Fraud. Convey., 242; Fellows v. Lewis, 65 Ala. 343. If, before the execution of the note by the defendant in attachment, waiving exemptions, he had given the horse to the claimant, and at the time of gift the horse was exempt from liability to the payment of debts, the title of the claimant cannot be assailed by the creditors of the donor, as fraudulent.” Here it is plainly inferable, that if the note by defendant waiving exemptions had been given before the gift of the property by him to the claimant, it would have been liable to the attaching creditor against the claim of the voluntary donee. In the case before us it was shown that the judgment in favor of the plaintiff against .the defendant in execution was rendered at the spring term., 1892, of Geneva circuit court, and the minute entry contained the recital of “a waiver of exemptions as to personal property.” It is to he presumed that the note or obligation upon which it was rendered, contained a similar waiver of exemptions, to authorize such an order in the judgment. Without this waiver, the horse would not have been liable in the hands of the wife to the exe
There was error in giving the general charge for the claimant.
Reversed and remanded.
