Peevey v. Cabaniss , 70 Ala. 253 ( 1881 )

SOMERYILLE, J.

The case of Smith’s Executor v. Cockrell, decided by this court at the last term (66 Ala. 64), is conclusive against the appellants, on the main questions raised by the assignments of error.

It had frequently been decided before that case, and the principle was there re-affirmed, and may now be considered as settled law, that the right of homestead exemption, as against creditors, is to be determined by the statutes which were in existence when the debt in the given case was created or contracted.—Fearn v. Wand, adm’r, 65 Ala. 33; Nelson v. McCreary, 60 Ala. 301,

It was further decided, as we think on the soundest principles, that an allotment of a homestead made by commissioners, appointed under the provisions of section 2881 of the Revised Code of 1867, and charged with the duty of valuing and setting it apart by metes and bounds, could not be made so as to impart retroactive operation to any exemption law existing at the time of the allotment, but not in existence when the debt in question was contracted. Accordingly, under the application of this principle, as against a debt created in 1865, an allotment a homestead under the provisions of the act of 1867, embodied partly in section 2884 of the Revised Code, was declared by this court to be inoperative and void.—Smith’s Executor v. Cockrell, supra.

In the same case it was held that, where such allotment of a homestead had been thus attempted to be made by commissioners, (Rev. Code, § 2^81) so as to give retroactive operation to an existing exemption law, and no notice of the proceeding was at the time given to the plaintiff in execution, the allotment was not binding on him, and he was not estopped from afterwards assailing its validity. '

The debt here in controversy was contracted in the year 1860. The exemption law then in force included a homestead, to be selected by the head of the family, not exceeding three hundred and twenty acres of real estate, and im value not to exceed the sum of five hundred dollars.—Rev. Code, § 2880. The exemption allotted by the commissioners was made under the act of 1867 (Rev. Code, § 2884), and the value of the homestead set apart was worth not less than fifteen hundred dollars, and very probably more than that sum. Nor is there any evidence in the record showing that the plaintiff in execution, Cabaniss, had any notice of the intended allotment as sought to be made by the commissioners. These considerations prove fatal to the validity of the whole proceeding, and render it entirely inoperative. The claim of exemption, therefore, based on this proceeding, or attempted allotment, and set up by the defendants in their answer to complainant’s bill, must fall to the ground as worthless and unavailing.

The conveyance made to Mrs. Peevey was’clearly voluntary, and, therefore, fraudulent and void as to the existing creditors of her husband, Robert Peevey, who q>aid the purchase-money to the grantor from his own funds, a portion of which he borrowed for this specific purpose. There is no conflict on this point, so far as concerns the facts disclosed by the evidence; and the donation is inferentially admitted, and sought to be justified by defendants in their answer, by the interposition of the claim of exemption.

There was no error in permitting the appellee. Cabaniss, to intervene as complainant in the Chancery Court in this suit, as the executor of Samuel Townsend, deceased. The proceeding was an equitable attachment by a surety, against Robert Peevey, the appellant, as principal debtor, commenced under the provisions of section 3864 of the Code. The act of the General Assembly, approved March 1st, 1881, amendatory of section 3866 of the Code, fully authorized the action of the court male. ing Cabaniss a party ; ’the original complainant in the suit, Wood, having died, and not having paid the debt in controversy, for which he was liable as Peevey’s surety; and Wood’s personal representative having refused to revive the suit, by intervening and further prosecuting it. The record shows affirmatively the existence of these conditions as required by the amendatory act. — Acts 1880-81, p. 33. .

The objections to the constitutionality of this act are, in our opinion, without force. No clause of the constitution is pointed out, to which it is at all repugnant. It is an act of legislation having reference exclusively to the remedy, and is a mere regulation of civil procedure in the Chancery Court, authorizing the real party in interest to intervene in a suit which was authorized by law for his benefit. This was the exercise of a purely legislative, and not of judicial power, and was clearly within the constitutional power of the General Assembly as the supreme law-making power of the State.—Davis v. The State, 68 Ala. 58; Dorman v. The State, 31 Ala. 216; Cooley’s Const. Lim. 380-383.

The purchase by Butler of the land in controversy was made after the levy of complainant’s attachment, and pendente lite. Complainant’s rights were, therefore, in no wise affected by the sale made to him by Peevey and wife. A vendee, in such cases, takes his title eum onere, and subject to the contingency of loss by the hazards of the pending litigation.—Freeman on Judgments, §§ 191-194.

We find no error in the decree, or other rulings of the chan- . cellor, which can affect the merits of this cause; and his decree is accordingly affirmed.

Brickell, C. J., not sitting.