Millikin & Co. v. Carmichael & Flynt , 134 Ala. 623 ( 1902 )

DOWDELL, J.

The undisputed facts in this case show that the lease under which the complainants claim was executed by Burns and wife to Nimmocks & Melvin on December 21st, 1896, and that at this time Burns and wife were residing upon the land, which had been entered by Burns under the homestead law of the United States, the same being government land. That Burns had not at the time, and not until two days later, on December 23d, perfected his entry and received certificate of homstead on final proof of entry. That the execution of the lease was. not acknowledged before, any officer, but Avas attested by one witness. That on. May 25th, 1897, the lease Avas transferred by Nimmocks & Melvin to the Peacock & Hunt Naval Stores Co., and afterwards by the latter to the complainant Carmichael, and by him of an undivided half interest to the co-complainant Flynt. That on May 27th, 1897, an acknowledgment of its execution Avas made by Burns and wife before an officer in the prescribed form of the Code for the conveyance of the homestead. That at the time of this acknowledgment by Burns, and Avife there Avas no redelivery of the lease, nor any additional or new consideration, but simply an acknoAvledgment by them of its execution of the date of its delivery, December 21st, 1896.

It is conceded in argument that Avithout the Avife’s acknoAvledgment taken separate and apart from the husband, the lease Avas void, but it is contended that the subsequent acknowledgment validated Avhat was otherwise a void deed. If the lessors, Bums and' Avife, at the time, of the execution of the lease, had been clothed with the right to make the same, this contention would be sound and find support in adjudication by this court. But such is not the case before us. The lease was void for another reason than that of a lack of sufficient acknowledgment by the Avife for the conveyance of the homestead. At the date of its execution, the homestead entry not having been perfected, Burns was prohibited under the homestead Liav of the United States on grounds of public policy from conveying or making any contract to convey any interest in the land, and any conveyance by him Avas absolutely void. — Anderson v. Corkins, 135 U. S. 483; Cook v. Mulloy, 101 Ala. 178; Woodstock Iron Co. v. Strickland, 121 Ala. 616. The subsequent acknowledgment by Burns and Avife Avas nothing but. a formal admission by them of their execution of the lease of December 21st, 1896. This certainly could give no more validity to the deed than if the acknowledgment had been made at the time of its execution, and yet if it had been so made, the lease, notwithstanding, would have been void. It is wholly different in principle from the case of a conveyance by husband and wife of the homestead where they have; the legal right to convey, and the conveyance fails by reason of a non-compliance with a prescribed form, which they have a. right to, and may remedy, by subsequent acts. In such case, it is the amista-bou that avoids the deed, and which may be ram edied by the parties. In the case before us it is the coinmmioiij or the act itself, and that which is forbidden on grounds of public policy, that avoids the deed, and it is not in the: power of the parties to give validity to the act. This view of the case renders it unnecessary to notice other questions raised in the record and discussed in the briefs of counsel.

The cause was submitted for final decree1 2upon the pleadings and proof, and a decree was rendered granting tile complainants relief prayed for. For the. reasons above given, the decree will be reversed, and a decree will be here1 rendered dissolving the injunction and dismissing complainants’ bill.

Noversed and rendered.