55 So. 536 | Ala. | 1911
Lead Opinion
The original bill is for the sale of 80 acres of land for' distribution among the tenants in common, and is filed by complainant against her brothers and sisters, or their representatives in blood. The bill alleges that complainant owns an undivided seven-twelfths interest in the land, and that respondents own the remaining undivided five-twelfths. The respondents filed their answer and cross-bill, denying that complainant owned more than a one-sixth interest in the land, and setting forth the following facts with respect to the title thereof. The land in question was owned by one Lewis R. Powell in 1885, and was then occupied as a homestead by himself and wife, Sarah A. Powell, and their daughter, Annie E. Winkles, the complainant. In that year — 1885—said Powell charged his said wife with adultery, and abandoned her and their home, to which he never returned, and took up his abode elsewhere. In May, 1885, he filed a bill for divorce on the ground of adultery, and in November, 1885, a decree was rendered divorcing him from his said wife. In February, 1887, on appeal to the Supreme Court, this decree was reversed, and the bill of complaint dismissed. In the meantime, in January, 1886,
The chancellor, disregarding the conveyances under which complainant claims, apportioned the ownership of the land in accordance with the original heirship of the parties, allowing complainant a one-sixth interest only; and he taxed her with one-half the costs of suit.
1. The fact that in an ejectment suit these respondents recovered of complainant only a five-twelfths interest in these lands, even if every essential of an estoppel by judgment appeared (which is not the case), can avail the complainant nothing here, since she has nowhere pleaded it. This rule is inflexible. — Clark v. Johnson, 155 Ala. 648, 47 South. 82; Jones v. Peebles, 130 Ala. 269, 30 South. 564; Hall v. Henderson, 126 Ala. 490, 28 South. 531, 61 L. R. A. 621, 85 Am. St. Rep. 53. Properly pleaded and proved, the result would, it seems, have been otherwise. — Coleman v. Stewart, 170 Ala. 255, 53 South. 1020.
2. The legislative divorce granted to Lewis Powell, being violative of section 23 of article 4 of the Constitution of 1875, was an absolute nullity, and Sarah Powell continued to be his laAvful wife as long as he lived, his attempted marriage Avith another woman notwithstanding. — Jones v. Jones, 95 Ala. 443, 11 South. 11, 18 L. R. A. 93. Nor would it make any difference if it were acquiesced in and treated as valid by the lawful wife.
3. As surviving widow of Lewis Powell, Sarah Powell owned but a life estate in these lands, and her deed to complainant conveyed no more than that. There is nothing in the record to show that the widow ever claimed the lands adversely to her husband; and, if she had, her possession could not have become adverse since it was at all times rightful and lawful, and neither her husband nor his heirs could haA-e disturbed it.
4. It only remains to consider whether, under the conditions shown, Lewis Powell could make a valid deed to these lands Avithout the voluntary signature and assent of his lawful wife, Sarah. Undoubtedly, the law authorizes the husband to choose'and fix the domi
The wife has no estate in the homestead when the legal title is in the husband, and the only rights she has with respect thereto are the common-law right of occupancy jointly with the husband, and the statutory right of veto against its alienation, so long as it remains the family homestead. — Witherington v. Mason, 86 Ala. 349, 5 South. 679, 11 Am. St. Rep. 41.
It results from these principles that the husband may without the wife’s consent abandon the homestead, and by so doing deprive it of the privileges and free it from the restraints attached to it by law. It is clear, therefore, that had Powell simply abandoned his home in Marshall county, and acquired a home in Winston county, Avhich he invited his wife to share, her refusal to do so, and her continued occupancy of the former home, would not have preserved the homestead character of such former home, and he could have alienated it without her signature or assent, subject, of course, toiler inchoate right of dower. But the record shows that he permanently abandoned both his home and his family; and so far was he from desiring the further presence of his Avife that in less than a year he took another-woman and installed her in the new home which he acquired. In accordance with the spirit and purpose of our homestead laws, we are of the opinion that the husband could not- thus abandon the homestead occupied by himself and his wife; and, while she continued to oc
5. By section 2537, Code 1886, brought forward as section 4190, Code 1907, it is provided that when, among other things, the husband absconds or abandons his family, the wife shall be entitled to interpose any and all claims of homestead or other exemption which the husband could have interposed, conditioned on her intention to continue a resident of the state. While this statute does not in terms forbid alienation of the homestead by the husband without the wife’s consent during the period of his abandonment, it does plainly show a legislative intent to preserve the character and immunities of the homestead in favor of the dependent members of the family, in despite of its attempted abandonment by the husband. Such solicitude would be barren of the good results intended if the husband could nevertheless declare the homestead abandoned, and by his deed alone authorize any stranger to enter and expel his helpless family. Its policy and effect are therefore strongly confirmatory of our conclusion above announced.
It is strongly urged by counsel for appellant that in denying the power of the husband to alienate in this case we are not protecting the wife at all, but are in fact actually thwarting her wishes with respect to the disposition and beneficial enjoyment of this property, which she wished to go to her daughter, the complainant, as shown by the deed she made to her. But this is wholly apart from the question, which is solely upon the validity of her husband’s deed to strangers. If that
6. The apportionment of costs, especially in a case like this, rests in the sound discretion of the chancellor,, and will not be reviewed on appeal. — Kitchell v. Jackson, 71 Ala. 556.
There being no error in the record, the decree of the chancery court is affirmed.
Affirmed.
holds that section 4190 of the Code is decisive of the question.
Dissenting Opinion
(dissenting). — By express provision of the Constitution, ownership and actual occupancy (with a single quasi exception, to be noted) are twin prerequisites — the one no more important than the other — to the establishment and retention of an homestead, with its attendant rights of exemption in this state. — Const. 1875, art. 10, §§ 2, 3; Const. 1901, §§ 205, 206; McConnaughy v. Baxter, 55 Ala. 379; Turner v. Turner, 107 Ala. 465, 18 South. 210, 54 Am. St. Rep. 110; Murphy v. Hunt, 75 Ala. 438; Barber v. Williams, 74 Ala. 331; Boyle v. Shulman, 59 Ala. 567, among others. The quasi exception mentioned is with respect to temporary absence from the homestead or the leasing of the same. — Turner v. Tu,rner, supra. Its statutory creation is confirmatory of the existence of the prerequisite of actual occupation. In Boyle v. Shulman, supra, it was said, Brickell, C. J., writing: “Actual occupation
The statute (Code, § 4190) referred to in the majority opinion only has reference to the claim of exemptions against the demands of creditors. It does not assume to confer on the wife or minor children the right to fix the homestead character on lands of the husband or father; for, under our system, only the owner may do that. Indeed, the statute clearly presupposes that
If the statute should he read as conferring upon the wife or minor children the right to prevent the husband or father from abandoning an homestead once established, or, to qualify, correlatively, the owner’s right to select his homestead, it would offend the Constitution by attempting to unwarrantably impose conditions on the benefit and exercise of a constitutional right.— Coolsey’s Const. Lim. p. 99; Marks v. Wilson, 115 Ala. 561, 563, 22 South. 134. However, the statute makes no such attempt. It merely confers under the circumstances enumerated upon the wife or minor children the claim power, as against the creditors of the husband or father, the absent or disabled husband or father could have exercised were he present and not disabled. It makes no effort to affect the establishment of the homestead, nor to trench upon the rules with respect to its alienation. In the writer’s opinion the statute is not in any way a factor in the matter presented for review.
As appears from the statement of facts in the majority opinion, Powell ceased, in 1885, to occupy the Marshall county place as an homestead, charged his wife with infidelity, and took up his abode elsewhere. This departure from its occupancy denuded that area in Marshall county of the characteristic of an homestead. He could not have claimed it as exempt against the
However outrageous and unjustifiable may have been Powell’s abandonment and treatment of his wife Sarah and their daughter, that fact cannot in my opinion have any bearing or influence upon the inquiry, Was the Marshall county place the homestead of Powell when he undertook to convey it? If the.deprivation of his right to select and establish another homestead, or to abandon one already established is a penalty for such wrongs, it is clear that the wife is given a far greater power with respect to the homestead than has been heretofore supposed to exist. In the Constitution she is given during the life of the husband only “a mere power to prevent its (homestead’s) alienation.” — Witherington, v. Mason, supra. But if an homestead, once established, cannot be abandoned as Powell undertook to do here, then, as the writer views it, the power of the wife is greater than the Constitution’s grant of the right of selection to the owner; its language being, “Every homestead * * * to be selected by the owner * * *” It seems to me that the result attained on this appeal is the pronouncement of the forfeiture of Powell’s constitutional right to select his homestead upon the wholly unrelated ground of his dereliction in duty to his wife Sarah and their daugh
So, holding these views, I cannot concur.