King v. Chandler

SOMERVILLE, J. The bill of complaint is fatally defective in not showing that the property in question was the homestead of P. L. King at the time he executed the mortgage. The fact that complainants were living on the place when the bill was filed —and no more than that is alleged — is not sufficient to show that it was their homestead eight or nine months before that time. But, in any event, the law was long since settled in this state, in harmony with the statute making a vendor’s lien for unpaid purchase money superior to the vendee’s claim of homestead exemption (Code 1923, § 7884), that the homestead claim cannot prevail against a purchase-money mortgage given contemporaneously with the purchase. Moses Bros. v. Home B. & L. Ass’n, 100 Ala. 465, 470, 14 So. 412. It is true that the bill does not affirmatively show that the mortgage was given contemporaneously with the purchase, but, in order to present a case for relief against a-purchase-money mortgage, it should be alleged that the mortgage was not a part of the transaction of purchase and sale. Mrs. King’s claim of outstanding dower gives no equity to the bill, since a purchase-money mortgage contemporaneously given by the husband purchaser is superior to the wife’s right of dower. Eslava v. Lepretre, 21 Ala. 504, 528, 56 Am. Dec. 266. And, in any case, the mortgage would be valid and enforceable, though subject to inchoate dower. The demurrer to the bill was properly sustained, and the decree will be affirmed. Affirmed. ANDERSON, C. J., and- THOMAS and BOULDIN, JJ., concur.