Smith v. Pearce , 85 Ala. 264 ( 1887 )

SOMERVILLE, j.

The present case must turn on one condition: Was the house and lot in controversy the homestead of Taylor, owned and occupied by him as such, at the time of the attempted conveyance of the premises by him to DeArman, on January 5th, 1881? If it was his homestead, this deed is admitted to be void, on account of a manifest defect in the certificate of the wife’s acknowledgment. — Motes v. Carter, 73 Ala. 353; Code, 1876, § 2822. The legal title of the premises, being unaffected by the void conveyance, which is a mere nullity, would remain in the grantor, and be subject to the lien of the plaintiff’s execution, issued March 27th, 1885, under which the premises were sold and purchased by plaintiff on June 29th, 1885 ; the defendant in execution, Taylor, having then abandoned the premises, and ceased his occupancy.- — Striplin v. Cooper, 80 Ala. 256; Alford v. Lehman, 76 Ala. 526. If DeArman acquired no title under his deed, the defendant in this action, who claims under him, obviously acquired no better estate or title than bis vendor bad. The controversy is simply one as to the relative superiority o£ tbe title supposed to be acquired by DeArman under Ms deed, and that acquired by plaintiff under his execution sale.

The record, we may add, shows that the deed from Taylor to DeArman was acknowledged by the wife, on July 21, 1885, so as to correct the imperfections of the former certificate. This was nearly a month after the sale of the property under plaintiff’s execution. But it is too obvious for argument, that this fact can exert no influence on the case, because the new acknowledgment could not operate retrospectively, to take away intervening rights vested before it was perfected.

The contention of appellant, seeking to sustain DeArman’s title, is based on the following facts: Taylor, while owning and occupying his homestead, with his wife and children, made a verbal contract with DeArman, in October or November of the year 1880, to sell the premises to him, apart of the purchase-money being then paid by the vendee. He then permitted DeArman to move on the premises, and to occupy all the rooms in the dwelling-house except three, which he, Taylor, continued to occupy, for the usual purposes of a homestead, with his family, agreeing to pay rent for them. This was his status at the time he executed the deed of January 5th, 1881, to DeArman. The inquiry is, had he then abandoned the premises, so as to have ceased his occupancy of them as a homestead? We think not. The verbal agreement to sell was absolutely void — conferring no rights whatever, nothwithstanding the payment of a part, or even the whole of the purchase-money. If a deed by the husband alone to the homestead, without the voluntary assent and signature of his wife, or his written agreement, is a nullity, as often decided; a fortiori, a verbal agreement to sell must likewise be void — as if it had never been. We may, therefore, discard this incident from the case as entirely immaterial.

It is plain that Taylor had never left or quit the premises. He was still in the actual use and occupancy of the three rooms as a home, residence, or dwelling-place of himself and family, and had no other. He certainly owned the place, because he had never parted with the title. He also occupied it as fully as if he had let to DeArman, or any other lodger, all of the premises except the three rooms retained. In the latter event, it could scarcely be maintained that such letting of a part would be an abandonment of the whole. The contrary has often been held. — Prior v. Stone, 70 Amer. Dec. 350, Note; Phelps v. Rooney, 76 Amer. Dec. 244. The renting of the premises by Taylor from DeArman did not operate, either to create an abandonment, or to estop him from showing that in reality the relation of landlord and tenant did not exist between them. We have held, that a verbal promise of the owner of a homestead to pay rent to the grantee, under a deed void for the want of the voluntary assent and signature of his wife, no actual change of possession being shown, was without consideration, and did not create the relation of landlord and tenant, so as to estop the real owner of the premises from denying the title of his alleged landlord. Such an arrangement, it was suggested, could not be allowed to defeat the purpose and policy of the homestead law, as expressed in our statutes and constitution. Crim v. Nelms, 78 Ala. 604. In principle, the present case is scarcely distinguishable from that deliverance. If a homestead can be verbally rented to a lessee, and he be allowed entrance, it may be, to a single room of the dwelling, and a deed afterwards made by the husband alone, against the protest of the wife, can operate to convey a good title to the grantee, a wide door would be open for the nullification of the salutary restrictions thrown around the alienation of homesteads by the law. It would enable husbands easily to do by indirection, without the knowledge, or even suspicion of the wife, what they are prohibited positively by law from doing directly. — Alford v. Lehman, 76 Ala. 529; Taylor v. Hargons, 4 Cal. 268; s. c., 60 Amer. Dec. 606, and Note.

In arriving at the conclusion that there had been no abandonment, or forfeiture by Taylor, of his right of homestead, at the time of the attempted sale of the premises, we but adopt that construction of our laws on this subject which, in our opinion, will best promote the wise and liberal policy in which they had their origin.

The Circuit Court did not err in giving the general affirmative charge in favor of the plaintiff, upon the agreed statement of facts contained in the bill of exceptions; and the judgment must be affirmed.