Marks, Rothenberg & Co. v. Wilson , 115 Ala. 561 ( 1896 )

HARALSON, J.

The constitution and statutes of this State secure not only the homestead exemption of 160 acres to any resident of the State, but the right of its selection to the owner thereof.. — Const. Art. X, § 2 ; Code of 1886, §§ 2508, 2515. Á purchaser from the husband is required to take notice as to what part of the land the debtor may choose to select. He buys at his own risk, as to that matter.—Jaffrey & Co. v. McGough, 88 Ala. 650. Both by the constitution and by statute, it is provided that no mortgage or other alienation by a married man of the homestead shall be valid without the voluntary signature and assent of the wife ; and the statute provides that this assent of the wife must be shown by her examination, separate and apart from the husband, before an officer authorized to take acknoAvledgments of deeds, and the certificate of such officer upon or attached to such mortgage ; and the form of the certificate is prescribed. — Code'of 1886, § 2508. We have often held, that any conveyance of the homestead by the husband alone, or defectively executed by the Avife, is a nullity. See McGhee v. Wilson, 111 Ala. 615, and the authorities there collated.

The mortgage in question as appears from the pleading included 120 acres of land besides the 160 claimed by the defendant as a homestead. It was good, as for anything appearing, for all the land not embraced in that part selected as a homestead; and the fact that defendant gave it on the homestead also, did not estop him afterwards from selecting and claiming 160 acres of it as his homestead. The mortgage, if the facts set up in defendant’s second plea are true, is void, just as if it had never been made, as to that part of the land which is claimed as a homestead.—New Eng. Mortg. Sec. Co. v. Payne, 107 Ala. 578 ; Crim v. Nelms, 78 Ala. 608 ; Alford v. Lehman, 76 Ala. 526.

The only other question to be considered is, whether the facts set up in plaintiff’s replications 2 and 3 constitute good replies to the defensive matter set up in said second plea. If defendant’s mortgage under which plaintiffs claim title, was a nullity as to the homestead, because not executed by the wife of defendant in the manner required by statute, the right of homestead remained, and the fact, that at the date of the mortgage, or at the alleged foreclosure sale, the homestead had not been selected and designated by the defendant, makes no difference. Plaintiffs were put on notice as to what part of the land the defendant might select.—Jaffrey & Co. v. McGough, 88 Ala. 650, supra. The fact that the mortgage was void as to the homestead, is a sufficient answer to the asserted benefit of plaintiffs arising from the foreclosure sale. The sale did not strengthen the plaintiffs’ title. There was nothing to foreclose, so far as the homestead was concerned. The mortgage conferred on them no rights whatever, either present or prospective, to the homestead, and was totally insufficient as a muniment of title to support an action of ejectment therefor, or on which to base any right to accrue from foreclosure.—Parks v. Barnett, 104 Ala. 441; Crim v. Nelms, supra; New Eng. Mort. Sec. Co. v. Payne, supra.

- The demurrer to said replications were properly sustained.

There is no error in the record, and the .judgment of the court below is affirmed.

Affirmed.