Lead Opinion

The plaintiff (appellee) instituted this action of statutory ejectment against the appellant to recover the northwest quarter of section 3, township 8, range 6, in De Kalb county. The trial was by the court without a jury. Judgment was accorded plaintiff for an undivided one-eleventh interest in the land. The only assignment of error urged in the brief for appellant is predicated, in effect, of the court's conclusion of fact, leading to the judgment rendered. The determining question was and is this: Whether the land in suit was the "homestead" of John G. Nichols, plaintiff's father, at the time of his death in January, 1898, within the purview of Code 1896, § 2071, which provides;

"When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title to such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not."

If the land in question was impressed at the time of John G. Nichols' death (January, 1898) with the homestead character and the other conditions prescribed in this statute were present, then plaintiff was not entitled to recover; plaintiff being an adult at the time, and a widow and five minor children also surviving the decedent.

Since the trial was by the court, without jury, the evidence entirely oral — so far as the main issues were concerned — the conclusion of the court will not be disturbed unless it is plainly contrary to the great weight of the evidence. McCay v. Parks, 201 Ala. 647, 79 So. 119, and previous decisions there cited, among others readily accessible. The evidence has been carefully examined; and the finding of the court below is at least so far justified by this theory, projected by the evidence, as to forbid, under the stated rule, a conclusion at variance with that attained by the court hearing and observing the witnesses, viz., that the land described in the complaint was not occupied as a homestead by John G. Nichols at the time of his death or was not so used by him as to impress the homestead character upon it; he not residing on this land at that time. The argument for appellant stresses the asserted fact — true, it may be — that the decedent only owned this 160 acres, worth not over $1,000, at the time of his death, and from this premise imputes error to the trial court's conclusion. There is some evidence opposed to this assertion; but if appellant's contention in this respect was conceded, still the theory just indicated, favorable to the correctness of the court's finding, would not be thereby neutralized or avoided — it being not only necessary, under section 2071, that the area and value should be within its definition, but, also, that the land should have been impressed with the homestead character. According proper application of the rule stated, it cannot be affirmed on this record that the trial court erred in the conclusion attained.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

Addendum

Neither section 2, nor any other section, of the act approved September 28, 1915 (Gen. Acts 1915, p. 831), purports to authorize this court to direct, originally, the transfer from the law to the *Page 284 equity docket of a circuit court a case in which only equity may afford appropriate relief. The practice established by that act contemplates original action in a trial, not an appellate, court; subject, when decided by the trial court, to review by appeal.

The application is denied.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.