60 So. 290 | Ala. | 1912
A conveyance by the husband of his homestead to his wife, if accepted by the wife, is, under the laws of this state, a valid conveyance of the legal title, although the Avife may not sign or aclmoAvledge the conveyance. — Turner v. Bernheimer,
The conveyance to AAfhich we hereinafter refer was executed prior to the adoption of the Constitution of 1901, and the Code of 1886, which controlled Avhen said conveyance was executed, contained provisions identically similar to those in the Constitution of 1901, and the Code of 19.07, above cited. In other words, the laAV of the state on the subject under discussion was the same when the conveyance was executed as it is today.
1. On the 4th day of January, 1890, Calvin Wallace, the husband of ODina Wallace, and the father of five minor children, the oldest of whom was then only 13 years of age, executed and delivered to his said wife and children a deed conveying to them as tenants in common, share and share alike, the house and lot in controversy. The house and lot was then the homestead of the grantor. The wife and children at the time of the conveyance resided there Avith him, and the grantor resided there with his said wife until his death, which occurred shortly before the bringing of this suit, and about 20 years after the execution of said conveyance. The property covered by the conveyance was in area and value less than that fixed by our laws for the homestead. The wife after the death of the husband continued to reside upon said property until this suit was brought. The above conveyance operated as a valid conveyance by the husband to the wife of the legal title to an undivided one-sixth interest in the land, but was void as a conveyance to the children of the oth
In the case of Turner v. Bernheimer, above cited, this court decided that a conveyance of the homestead by the husband to the wife, delivered to and accepted by her, was not an alienation of the homestead within our constitutional and statutory provisions, and was effectual to convey to the wife the legal title to the land, and that was all that this court in that case did determine. The quotation in the opinion in that case from Thompson on Homesteads, § 473, that laws requiring the voluntary assent and signature of the wife to an alienation of the homestead “are not intended to interpose obstacles in the way of a conveyance of the homestead to the wife or to the wife and children, with the consent and approval of the wife, whatever may be the form of such conveyance,” has no applicability, so far as conveyances to children are concerned, to the subject of the alienation of homesteads in Alabama under its Constitution and statutes. Section 2508 of the Code of Alabama of 1886, the Code which existed at the time of this
2. On the 13th day of September, 1907, the said Calvin Wallace and wife, Dina Wallace, executed and delivered to the H. L. Wood Lumber Company a mortgage on said lands to secure an indebtedness of $454.40, which fully matured on September 13, 1911. On October 2, 1909, the same parties executed and delivered to said lumber company another mortgage on the same lands to secure an indebtedness of $107, which matured on October 1, 1910. The debts secured by these mortgages were not paid, and, before this suit was brought, these mortgages were properly transferred and assigned to the plaintiff, who is the appellee here. This was an action of ejectment, and was brought by the plaintiff against the said Dina Wallace and said five children, grantees in the above-mentioned deed, for the possession of the said lands described in the said deed and in said mortgage. The plaintiff proved that at the time of the execution and delivery of said mortgages the said Calvin and Dina Wallace were in possession of the said land, introduced in evidence the said mortgages and the
3. The bill of exceptions recites that after the trial court had excluded the deed above referred to from the evidence, as a defense to said suit, “the defendanats re-offered said deed, and stated to the court that it was offered as color of title and would be followed up with evidence showing adverse possession by the defendants of the lands sued for for more than 10 years, and, perhaps, 20 years, and it was offered for the purpose of showing color of title.” While a void deed may furnish color of title to a party in the adverse possession of lands, claiming title adversely to that of the true owner, and while the deed in question may not have been subject to the identical objection' interposed by the plaintiff to it, the deed, under the circumstances shown by the bill of exceptions in this case, was not admissible
The rulings of the trial court were free from error, and the-judgment of the court below is affirmed.
Affirmed.