Millikin & Co. v. Carmichael

TYSON, J. The matter of controversy between the parties arises out of their respective claims to box and take from pine trees gum or rosin, standing upon the homestead of one Franklin. The complainants predicate their .right upon a written instrument of date of December 8, 1899, granting to-them the right of ingress and egress upon the land for the boxing of the trees and taking from them the gum for the purpose of manufac [229] turing. turpentine for a designated period of time which was executed by both Franklin and his wife and properly acknowledged by both. The acknowledgment of the wife is in the form required for conveyances of homesteads. The respondent asserts his right under a similar instrument, executed by Franklin, the husband, alone on November 24,1890, and recorded June 1, 1891. From this statement it will readily be seen that the question presented is, whether the signature of the wife and her separate and' apart acknowledgment is necessary to the validity of the instrument under which the respondent claims. If not, it is entirely clear that his right is superior to those of the complainants. Te statute provides that, “no mortgage, deed or other conveyance of the homestead by a married man shall be valid without the voluntary signature and assent of his wife, which must be shown by her examination, separate and apart from him, before an officer authorized by law to take acknowledgments of deeds, and the certificate of such officer upon or attached to said mortgage, deed or conveyance,” etc. — Section 2034 of the Code. This statute simply restrains and limits the husband’s power of alienation in whom the title to the homestead is vested, which is a mere incident of his ownership. McGuire v. Van Pelt, 55 Ala. 353. I-Ie is the owner of it and has unlimited dominion and power over it so far as the use to which it may bé put. He may cultivate it, if it is susceptible of cultivation or not as he pleases and in such manner as he may choose. 1-Ie may, if it is timber land, fell the timber for the purpose of making it suitable for cultivation, or for that matter he may destroy the timber growing upon it or he may sell it after he has felled it; and this he may do although the doing of it may destroy the market value of the land. He has the undoubted right to extract from the pine trees upon it the gum or rosin without molestation or. hindrance; or to take from the trees the burrs or needles for the purpose of sale or otherwise. Should there be upon it an orchard of fruit trees, who doubts his unqualified right to gather the fruit and dis [230] pose of it as lie may clioose? Or should minerals exist in or upon it, who can question his right to mine or dispose of them? The crops he may raise upon it are his and these he may mortgage or sell 'without his wife’s assent. In short, being the owner, the use to which he may put the land, and everything attached to it and a part of it, is illimitable and uncontrolable. Assuming for the purpose of this case, as seems to have been done in Millikin v. Carmichael, 134 Ala. 623, that the instrument- under which the respondent claims is a conveyance of an interest in the land (a proposition not decided), the principle that must control is found in 15 Am. & Eng. Encyc. of Law, (2d ed.), p. 674. It is there, said: “The authorities are not uniform as to the right of the husband alone to lease the homestead premises, for this right has been both affirmed and denied. The most satisfactory rule would seem to be that the husband alone may lease the homestead lands for purposes not interfering with the use of the property as a homestead, but cannot do so when the lease interferes with such possession and enjoyment of the premises by the wife.” Mr. Thompson in his work on Homestead and Exemptions (§471) states the same rule in this language: “But the husband may, without the consent of the wife, give leases of homestead lands Avhich do not interfere with their use and occupancy as a homestead, and also licenses to cut timber, quarry stone, remove minerals and the like,” etc. — See also Waples on Homestead and Exemptions, §433; Smyth on Homestead and Exemptions, § 303; Harkness v. Burton, 39 Iowa. 101; Coughlin v. Coughlin, 26 Kan. 116. Under this rule the rights of the husband as owner are fully protected and conserved and no right of the wife violated. In the absence of averment and proof that the exercise .of the privileges granted to the respondent interfere a\ itli the use and occupancy of the land as a homestead, it cannot be affirmed that it does. It is not even shown that the extracting of the gum or rosin from the freer [231] deteriorates their value much less diminishes the value of the laud or otherwise impairs its value as a homestead ; 'lion constat, its value may be enhanced and its use and occupation as a homestead rendered more valuable. The case of McKenzie v. Shows, 70 Miss. 388, cited by appellants, involved the validity of a conveyance by the husband of all the timber of a designated size growing on the land, no time being fixed for its removal. The question presented was whether the conveyance was an incumbrance of the homestead. The court held that' growing trees are a. part of the realty; that the conveyance was an incumbrance and that the wife should have joined in it. Stress was laid in the opinion upon the fact that there was a wholesale conveyance of the timber uith large diminution in value of the homestead. The case of Pritchett v. Davis, 101 Ga. 236; s. c. 65 Am. St. Rep. 296, also cited and relied upon is very much like the Mississippi case. The point involved in Millikin v. Faulk, 111 Ala. 658, was whether the lease, which was of the same character as these, was an unconditional conveyance of real property within the meaning of section 1005 of the Code. It Avas held that it was. Neither of these cases are in point. What avc have said in no wise conflicts with McGhee v. Wilson. 111 Ala. 615, which holds that the conveyance of a right of way to a railroad through the homestead in which the wife does not join is void. The distinction ‘between that case and this one is so apparent, it is unnecessary to point it out. Affirmed.