Reid v. Allen

McCLELLAN, J.

— In the year 1906 J. W. Reid sold to S. J. Toney a tract of land containing about 65 acres. The purchase price was to he paid in three installments of $200 each, payable annually. Eeid executed to Toney bond for title, conditioned to make conveyance upon Toney’s payment of the purchase price of the land. 'After two installments had been paid, Toney, for a valuable consideration, transferred, in writing but informally, the bond for title to H. O. Allen. In this transfer the wife of Toney did not join. Toney was at the time occupying, with his wife, the land as a homestead. Allen later paid to Eeid the remainder of the purchase money. This bill, exhibited by Allen, seeks the specific performance of the contract by Eeid — the conveyance of the land to Allen according to the stipulation of the bond for title so transferred by Toney. The relief sought was granted, and the vendor, Eeid, appeals.

It is insisted that the decree is affected with error for that the transfer of the bond for title by Toney to Allen was and is void, because the wife of Toney did not join in the alienation as required by law with respect to the homestead of a resident of this state. Under the circumstances indicated, it may be that the transmission of the rights of the vendee, who has so impressed the premises with a homestead character, to be wholly effectual', must be joined by his wife, with all the formality usual in conveying a homestead held in fee. See 21 Cyc. pp. 534, 535; 16 Am. & Eng. Ency. Law, pp. 668, 669; Watts v. Gordon, 65 Ala. 546; contra, perhaps, see Cochran & Ramsey v. Adler, 121 Ala. 442, 445, 25 South. 761, particularly last paragraph. However, it is entirely unnecessary, in this instance, to enter upon the consideration of that inquiry.

The vendor, Eied, was and is a stranger to any homestead right or interest Toney and his wife had in the premises. Only the husband and wife, in whose interest the homestead exemption is raised by positive law, or those standing in a relation of privity to them in respect to the homestead, or having a valid lien thereon, can question the sufficiency of the means employed to effect an alienation of the subject of the homestead right. Cobbey v. Knapp, 23 Neb. 579, 592, 37 N. W. 485; Parks v. Hartford Ins. Co., 100 Mo. 373, 380, 12 S. W. 1058; 21 Cyc. pp. 557, 558; 15 Am. & Eng. Ency. Law, pp. 687, 688.

General' creditors — creditors without a valid lien on the subject of the homestead right — cannot question the irregularity of the conveyance thereof that arises by reason of the failure of the wife to join in the conveyance. — Author. supra.

A conveyance of the subject of the homestead right by the husband alone is voidable — not absolutely void— at the instance of one with right to have such a conveyance pronounced void.

The appellant cannot invoke judicial powers in the premises, since he is a stranger to the right he would indicate, a right which those in whose favor it existed have not seen proper to ascertain or claim in this instance.

It is objected, but without demurrer to point the objection, that the surviving widow of H. C. Allen, deceased, in whose name, along with the heirs at law, the cause was revived, was improperly joined as a complainant. If otherwise tenable, the objection was waived by failure to seasonably raise it.

The decree is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.