Snedecor v. Freeman , 71 Ala. 140 ( 1881 )

STONE, J.

In this case several ejectments, being for the recovery of undivided interests in the same lands, were by consent tried together. The two plaintiffs, Jack Freeman and Alfred Freeman, recovered in the court below, and rulings in their cases raise the questions which are presented for our decision. Each sued for one-eighth undivided interest in a tract of four hundred acres — equal to fifty acres each — and each recovered a one-eighth undivided interest in the whole tract, and one hundred dollars as rents or mesne profits. We are not informed what became of the other suits.

The testimony tends to show that the two Freemans, Alfred and Jack, jointly purchased, together with four other named parties, the tract of four hundred acres, on an agreement expressed in the contract of purchase that Alfred and Jack were each to have fifty acres, and the other four purchasers each seventy-five acres. There was no partition or division of the lands, but they were held and occupied by the purchasers as tenants in common. This possession and common occupancy commenced about 1870 or 1871, and continued until the spring of 1874, when they all removed from the land, and have never returned to it. During the common occupancy there were on the premises three dwellings or cabins. One was occupied by a person not shofvn to have or claim any interest in the land. The remaining two were occupied severally as homesteads by Jack and Alfred Freeman, who were married men and had families. They resided three or four hundred yards apart, and on separate eighty-acre sub-divisions of the tract. They were thus occupying when the mortgage was executed, under which the claimants justify their possession.

In January, 1813, Jack and Alfred Freeman, with one other of the tenants in common, ex'ecuted a mortgage to Asa Johnson, to secure a recited debt for advances to make a crop. This mortgage purported to convey the whole land, but neither wife of the several grantors j'oined in the mortgage. It will be observed that this mortgage was executed before the quantity of the homestead exemption was enlarged to one hundred and sixty acres by the statute of April, 1873. Hence, the quantity of the homestead these grantors could claim could not exceed eighty acres each.

In McGuire v. VanPelt. 55 Ala. 344, and in Blum v. Carter, 63 Ala. 235, the question of homestead arose on the title of a tenant in common. We settled in those cases that the fractional ownership of the claimant of homestead did not enlai'ge the area of its operation, so as to make up in quantity, what is wanting in extent of ownership, We ruled that the homestead claim is limited to the quantity the statute or constitution prescribes ; and that the claim is valid only for such interest, both in extent and duration of ownership, as the claimant owns. If the ownership be fractional, or less than a fee, then the exemption is fractional, and continues only so long as the title of the owner and occupant lasts. The homesteads in these cases being governed by the constitution of 1868, and in quantity not to exceed eighty acres, it follows that whatever homestead interest the plaintiffs could claim in these cases, must be confined to the extent of ownership each of them had in a separate eighty acres. The testimony shows they were each of them entitled to an undivided one-eighth interest in the tract; therefore, the homestead can not exceed an undivided eighth interest in eighty acres, so selected as to include the actual homestead of the claimant. In overlooking the principle declared above, the Circuit Court was betrayed into some important errors. The whole tract of land contained four hundred acres, and it is not shown it was ever partitioned. The claims of these plaintiffs are each limited to eighty acres — one hundred and sixty acres for the two. Whatever interest they had in the remaining two hundred and forty acres, they could not claim as homestead. '

It is contended for ajDpellees that there were gross irregularities in the transfer of the note and mortgage made to Johnson, and in the sale and conveyance under it. On this account it is alleged that the defendants are in possession under no valid title, and therefore the Freemans can recover on thq strength of their original ownership. ¥e consider it unnecessary to pass on the regularity of the transfer of the note and mortgage, and of the sale and conveyance under the latter. They at least conveyed the mortgage interest, and are enough to show that Snedecor was in possession under claim, if not color of right. 'He was not a naked trespasser. Holding under claim of right, it was enough to defeat the plaintiffs’ action for him to show outstanding title in a stranger.-Scranton v. Ballard, 64 Ala. 402.

Another important question arises. The conveyance by the Freemans was of the entire tract of four hundred acres. The two homesteads could not, collectively, embrace more than one hundred and sixty acres. As to two hundred and forty acres, the conveyance was not void.-McGuire v. VanPelt, supra. The record contains no evidence that the homesteads had ever been selected by the claimants.' This was a necessary prerequisite to the right to sue for them. Preiss v. Campbell, 59 Ala. 635; Nelson v. McCrary, 60 Ala. 301; Hardy v. Sulzbacher, 62 Ala. 44; Martin v. Lile, 63 Ala. 406; Garner v. Bond, 61 Ala. 84.

The judgment of the Circuit Court is reversed, and the cause remanded.