102 Ala. 304 | Ala. | 1893
James W. Hodges, the appellee, instituted the statutory action of ejectment to recover certain lands, and upon the conclusion of the evidence, the court gave the general affirmative charge for the plaintiff. Prior to the bringing of the present action the appellant, John G. Winston, Jr., in a similar proceeding, had recovered the lands now sued for from the plaintiff in this suit, and on appeal the judgment was affirmed.— Hodges v. Winston, 95 Ala. 514.
At common law a judgment in' ejectment was never final; either party failing could bring a new action.— Camp v. Forrest, 13 Ala. 114; Boyle v. Wallace, 81 Ala. 352; Jones v. DeGraffenreid, 60 Ala. 145. The only change in the common law made by statute of this State is, that two judgments in favor of the defendant, between the same parties, in which the same title is put in issue, is a bar to any action for the recovery of the same land or any part thereof, between the same parties or their privies, founded on the same title. — Code, 1886, § 2714. Both parties claim title from a common source; the appellant, Winston, as a purchaser at execution sale, as the property of James G. Coleman, and the sheriff’s deed, and the appellee, Hodges, by deed of conveyance from James G. Coleman and wife. The deed of conveyance to Hodges was dated February 20th, 1885, filed for record and recorded September 1st, 1885, in Book 0., pp. 322-3. This deed was again filed for record on the 13th day of February, 1886, and recorded on the 15th day of February, 1886, in Book O., pp. 453-4. The cause which led to the second registration will be referred to hereafter. The vendor, James G. Coleman, remained in possession under a rental contract from Hodges until the fall of the year 1885, when he removed to the State of Texas. The judgment against James G. Coleman, under which the land was sold by the sheriff, was rendered on the 23d day of February, 1885, in favor of Jno. G. Winston & Co., three days subsequent to the date of the deed to Hodges, but several months prior to the date of registration. The first execution issued and was received by the sheriff on the 22d of March, 1885, and executions were regularly kept up until the levy and
The next question is whether the lands constituted a part of the homestead of James G. Coleman, and, if so, did they pass by the deed to Hodges. The evidence shows that the dwelling house of James G. Coleman was situated on forty acres of land which belonged to him, and this forty acres was separated from the land in controversy about three-quarters of a mile, by lands belonging to other parties. The evidence further shows that James G. Coleman had used and cultivated about twenty acres of cleared land of the land in suit, in connection with the forty acres upon which he resided for a great many years, the produce of which, equally with that raised on his own land, was consumed by him in the support of his family. The evidence shows however that at no time prior to the 7th day of February, 1885, did he own or claim as his own the land in controversy, but it belonged to his father, and by his license merely, without any contract of lease or other right than the mere verbal permission of his father, was the land used and cultivated by James G. Coleman. By the will of his father, who died on the 7th of February, 1885, James G. Coleman became the owner of the land in controversy. On the 20th of February, 1885, some thirteen days after he 1became the owner, the sale and deed to Hodges were executed. It is not necessary that a homestead should consist of one entire tract or parcel, all lying contiguous. It is sufficient if the separate tracts are near together and are used in common as one tract for the support and comfort of the family, and not in a city, town or village, which do not exceed in area one hundred and sixty acres, nor $2,000 in value. — Dicus v. Hall, 83
We have found no case, however, which has gone to the extent of holding, that a homestead right, even inchoately, could attach to premises in which the occupant neither owned nor claimed to own any right or interest. The purpose of the homestead law was to protect the right and interest from levy and sale, and where there was no interest subject to process of law, the homestead law can have no operation. Such seems to have been the only interest or right of James G. Coleman in the 'land in controversy during his father’s life time. There was no act on the part of James G. Coleman from the time he became the owner of the land, 7th of February, 1885, and the date of his sale, if there was a valid conveyance on the 20th of February, 1885, which in any manner indicated that he claimed or intended to use the land derived from his father as his homstead. See Watts v. Gordon, supra. It may not be necessary to decide this question.
Treating the land as a part of the homestead, which of the parties litigant has the superior right? When the deed was first delivered to Hodges and filed by him for record and recorded, the acknowledgment was wholly insufficient as a conveyance of the homestead. The acknowledgment failed to show a separate examination of the wife, and as a deed of conveyance was null and void. When it was filed the second time for record, in February, 1886, it was properly acknowledged and on its face was effectual to pass the homestead. • This second acknowledgment bears the same date, to-wit, February 20th, 1885, as the first, and both were taken lay the same justice of the peace. The testimony of the justice is very
As the case must be reversed and remanded, we will not express any opinion upon the effect of the evidence so far as it relates to these questions. The fact that James G. Coleman made a verbal contract to rent the land from Hodges for the year 1885 would not invalidate his title to the homestead, or prevent him from asserting his homestead right, if the deed to Hodges was void, for want of a proper acknowledgxnent by his wife. — Smith v. Pearce, 85 Ala. 264. Exceptions based upon the rulings
There was no error in admitting the deed from Coleman to Hodges in evidence. It might have been more formally and regularly signed ; but looking at the instrument as a whole, it is sufficient.
Reversed and remanded.