Farley, Spear & Co. v. Whitehead , 63 Ala. 295 ( 1879 )

STONE, J.

This was a statutory action of ejectment, to recover possession of lands, in which the verdict and judgment were for the defendant. It is contended for appellee, that as the plaintiffs must recover on the strength of their own title, and show what is equivalent to a legal title in them, it is immaterial what may have been the rulings of the Circuit Court, the judgment must be. affirmed, because the plaintiffs failed to show a right of recovery, and are therefore not injured by any rulings the court made. It is certainly the rule in this court, that if the record shows, affirmatively and clearly, that the plaintiff never can recover, then he cannot complain of any rulings of the court against him, no matter how erroneous such rulings may be, as matter of law. Such erroneous rulings are, at most, error without injury. — Alexander v. Caldwell, 61 Ala. 543; 1 Brick. Dig. 780, §§ 96, 97. To come within this rule, however, the facts negativing plaintiff’s right of recovery must be clear and uncontroverted. Indefiniteness and insufficiency of the plaintiff’s evidence will not authorize the application of the rule. — lb. 780, § 98.

It is contended for appellee that plaintiffs below, having failed to prove title in themselves, are brought within the rule stated above It must be conceded that there is not enough in the bill of exceptions to prove a legal title in plaintiffs. 'Their purchase at assignee’s sale, not being fol-' lowed by a conveyance, vested, at most, an equitable title in Earley, Spear & Co. An equitable title will not support ejectment. Neither can plaintiffs recover on the mortgage made to Taylor, without showing a deed from the mortgagee to them, either indorsed on the mortgage, or by a separate conveyance. — Graham v. Newman, 21 Ala. 497. The recital in the bill of exceptions in this case falls far short of proof of a conveyance of title. What the substance or form of the transfer was, we are not informed. But the bill of exceptions does not affirm that it contains all the evidence. In such case, we cannot apply the doctrine of error without injury. — Marshall v. Betner, 17 Ala. 832; Adams v. Adams, 26 Ala. 272; Pinkston v. Green, 9 Ala. 19; Young v. Dumas, 30 Ala. 213. When error is shown, the pre'sumption of injury arises, and must be clearly repelled by the record, or the judgment will be reversed. — 1 Brick. Dig. 780, § 100; Castello v. Thompson, 9 Ala. 937; Williams v. Cannon, 9 Ala. 348.

The defense relied on was, that the premises stíed for were exempt to Sutherlin as his homestead. A certified copy of an order, made in the District Court in bankruptcy, was relied on in support of this defense. That order was made after the present suit was brought. It purports to be a judgment rendered nunc pro tunc, but does not show when the order was made, which it assumes to amend. It is headed “ Ex parte J. M. Sutherlin, bankrupt; ” and declares that, “ upon the hearing of the petition in this cause, it appears to the court that the facts set forth in the petition are true} and it further appearing that a homestead exemption was regularly set aside and assigned to said bankrupt, but that there is no record evidence of any conveyance therefor to protect his title ; it is therefore ordered by the court, that J. E. Bailey, assignee of said bankrupt’s estate, execute to said J. M. Sutherlin, bankrupt, a conveyance nunc pro tunc of the following real estate, as a homestead exemption,” &c. The petition referred to in the order was not produced. The order, certified by the clerk as a true copy of the original, was offered alone, and received in evidence, against the. objection of plaintiffs. Neither the bankrupt’s claim of exemption, nor the action of the court, or of the assignee, in' allowing the claim of homestead exemption, is shown in the present record. It will be observed that, in the order made by the District Court, granting the prayer of the petition, no complaint had been made that the record did not show the homestead exemption had been set aside. The court affirmed that such exemption “ was [had been] regularly set aside and assigned to said bankrupt.” The complaint made, and the relief sought, rest on the fact affirmed, that there is no record evidence of any conveyance therefor to protect his [the bankrupt’s] title. If this be true, there was evidence that the homestead had been set aside and assigned ; and the additional security the bankrupt sought and obtained an order for, was record evidence of a conveyance to protect his title. It would seem that a bankrupt is not entitled to a conveyance of his homestead by the assignee. The title to exempt property never vested in the assignee. — Bev. Stat. TJ. S. § 5045. But, be this as it may, the transcript offered in evidence was fragmentary, omitting all connection with a judicial proceeding, and omitting the petition on \thich it was granted, and all evidence of record, or quasi of record, that the homestead had been regularly set aside and assigned. The Circuit Court erred in admitting this certified copy-order in evidence against the present plaintiffs, whose asserted right accrued before the order was made. — 1 Brick. Dig. 823, §§ 282, 283. _

_ There is another phase of the defense in this case in which the Circuit'Court erred. It is settled in this court, that the homestead which the constitution exempts, shall not exceed in value two thousand dollars. — Miller v. Marx, 55 Ala. To that extent, the constitutions of 1868 and of 1875 operate a complete exemption by their mere unaided force. If, after being reduced to the lowest practicable area, the homestead still exceeds two thousand dollars in value, it is entirely without the operation of the constitutional protection ; and the conveyance of it by the owner, being a married man, without the voluntary signature and assent of his wife, is not. made void by that instrument. If, when the mortgage was made, the homestead exceeded two thousand dollars in value, Sutherlin had no valid claim to have it declared exempt from the grants and covenants contained in his mortgage to Taylor. — Watts v. Burnett, 56 Ala. 340.

Several of the rulings of the Circuit Court are opposed to these views.

The judgment is reversed and remanded. '