Garner v. Bond

BRICKELL, C. J. The constitution of 1868, operative at the execution of the mortgage, and which must determine its validity, so far as it depends upon constitutional provision, like the present constitution, declared, that no mortgage or other alienation of the homestead, by the owner thereof, if a married man, should be valid without the voluntary signature and assent of the wife. No particylar mode of signing, or expressing the assent, was prescribed. Prior to the statute of April 23,1873, (Pamph. Acts 1872-3, p. 64), if the wife joined in the execution of the conveyance, and it was acknowledged, or proved, and certified in the mode prescribed by the general statutes for the execution by married women of conveyances of real estate, the mandate of the constitution was satisfied. — Miller v. Marx, 55 Ala. 322. This- statute declared no mortgage or other alienation of the homestead, by the husband, should be valid, unless the voluntary signature and assent of the wife was shown by her privy examination, certified in writing by a judge or chancellor in a particular form. Neither the constitution, nor the statute, render the mortgage, or other conveyance, absolutely void — it is void only as to the homestead. When it embraces lands of greater quantity, or greater value, than the homestead, as defined by the constitution, or the statute, [88] the excess in value, or of quantity, passes to the grantee. McGuire v. Van Pelt, 55 Ala. 344; Thompson on Homestead, §§ 474, 477. It is a homestead, not exceeding eighty acres in quantity, if not in a town, city or village; or if in a town, city or village, a lot with the dwelling and appurtenances, not exceeding in value two thousand dollars, which the constitution exempts from liability for the payment of debts, and disables the husband from conveying without the voluntary signature and assent of the wife. The limitation of value applies whether the homestead is in a town, city or village, or in the country. Quantity and value are as essential elements of the homestead, as residence in the State, and actual occupancy by the owner. — Miller v. Marx, supra. The act of 1873, enlarged the quantity, and removed the limitation of value, as to homesteads in the country; but wrought no change as to the homestead in the city, town or village— these were suffered to remain as defined by the constitution. The constitution exempted a homestead, as an entirety' — not a part of, nor an undivided interest in a homestead. Land, not exceeding in quantity eighty acres, or a lot, with the dwelling and appurtenances, neither exceeding in value two thousand dollars, were relieved from liability for the payment of debts, and alienation thereof restrained. The quantity and value were descriptive features of the homestead, and where these did not exist, the constituton did not operate— exemption from payment of debts did not attach, nor the restraint of alienation. — Miller v. Marx, supra. When the homestead — the dwelling-place, exceeded the limitation of value, and was incapable of division so as to reduce it within that limitation, the constitution furnished no authority and no mode by which an equivalent could be allowed to the owner if living, or if he was dead, to his widow, or minor children. — Miller v. Marx, supra. The act of 1873, provided that when the homestead was in the city, town or village, and was of greater value than two thousand dollars, a sale thereof under execution or other legal process could be had, but the purchaser could not enter until he paid or tendered to the owner two thousand dollars. Or, if the owner died, and the homestead was sold by his personal representative for the payment of debts, the purchaser was required to pay two thousand dollars of the purchase-money to the probate judge for the benefit of the widow and minor child or children. The quantity of the homestead in the country having been enlarged, and the limitation of value removed, no pro [89] vision for the allowance of an equivalent was necessary, as there was no event in which it could be sold. The provision .for an allowance of an equivalent in money for the homestead, the statute limited to two cases, — the salé under execution or other process in the life-time of the owner, and a sale after his death by his personal representative. When as in the present case, there was a sale to be made under a decree of foreclosure, after the death of the husband, of a homestead not capable of being reduced by partition or division, within the constitutional limitation of value, no authority is given to any court, to order an allowance or compensation in money to the widow and minor children, for the value of the homestead. The constitution did not contemplate the conversion of the homestead into money — a change of the character of the property into other property incapable of use, as that which was exempt, and the alienation of which was restrained. The constitution and the act of 1873, must control as to the power of the court to allow compensation for the homestead, and not the act of February 9, 1877, enacted after the death of the husband, and after the execution of the mortgage. — Taylor v. Taylor, 53 Ala. 135; Rottenberry v. Pipes, ib. 447; Chambers v. McPhail, 55 Ala. 367. The result is the decree of the chancellor allowing to the widow and children compensation in money for the value of the homestead is erroneous. The right of the widow to dower is not controverted. It may be well however for the parties to consider, whether it can be obtained in the present suit, without a cross-bill; and whether otherwise than by the consent of the appellant, an allowance of a gross sum in money can be made to her in lieu of dower. The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.