Campbell v. Noble , 145 Ala. 233 ( 1906 )

DOWDELL, J.

The main question in this case is whether the deed from Howard and Susan Boyseau to Mattie R. Campbell of December 10, 1892, is void for failure of an examination of the wife seperate and apart from the husband. It appears, from the undisputed evidence that at the date of the execution of the deed Howard and Susan occupied the land in question as a homestead; that Howard, the husband, held and owned a life estate in the property, and Susan, the wife, held and owned a vested remainder in fee. At the time of the filing of the bill Howard was dead. An examination of the wife separate and apart from the husband is required 'only where a conveyance is made of the homestead of the husband. — Dawson v. Burrus, 73 Ala. 111. A conveyance of the homestead without an examination of the wife separate and apart from the husband is not necessarily void in toto: In Snedecor v. Freeman, 71 Ala. 144, it was said: “If the ownership be fractional, nr less than a fee, the exemption is fractional, and continues only so long as the title of the owner and occupant lasts.” Again, in McGuire v. Van Pelt, 55 Ala. 353, in a case where the conveyance carved a larger area than allowed as a homestead exemption, it was said: “The husband’s disability to convey extended only to this 80 acres to be carved out of the entire tract. ' * * The power to- alienate was limited only by the quality and quantity of the estate.” See, also, Garner v. Bond, 61 Ala. 84 ; De Graffenried v. Clark, 75 Ala. 425.

In this case the husband’s estate expired by limitation with his death, and the only question, therefore, is whether the deed passed the estate of the wife, Susan, If the deed had been confined to the conveyance of Susan’s remainder interest in the estate, it is quite clear that no examination of the wife separate and apart from the husband rvould have been required or necessary to the validity of the conveyance, since there would have been no conveyance of the husband’s, homestead. We are of the opinion, under the above authorities and reasoning, that the conveyance was a valid one of the wife’s fee in the land. The old common-law rule that a consideration was necessary in a deed of bargain and sale in order to prevent a resulting trust no longer obtains. 2 Devlin on Deeds, § 817, 1189. In this state the question is put at rest by the statute, declaring in effect that all conveyances shall pass the fee unless a contrary intention is clearly expressed in the conveyance.- — Patton v. Beecher, 62 Ala. 589. No fraud is alleged in the execution of the. deed in question, and a consideration is not necessary between these parties.

There is nothing in the suggestion of adverse possestion as a defense against the deed, since no declaration of an intention to claim adversely was ever filed in the office of the judge of probate.' — Scales v. Otts, 127 Ala. 582, 29 South. 63. The decree appealed from will be reversed, and one ivill be here rendered denying relief to the complainant in the original bill and granting relief to the respondent as prayed for in her cross-bill.

Reversed and rendered.

Haradson, Anderson, and Denson, JJ., concur.