Colvin v. Woodward

The opiriion of the Court was delivered by Fenner.. J. This action is brought to enforce specific performance of the following written contract signed by defendant: “I hereby agree to carry J. M. Colvin one bale of cotton, and make a deed to him of forty acres of my land, and he make a deed to me for the laud I deeded him, and which is now on record in his name, this October 5, 1886.” The defense is that the land referred to in the instrument, is part-of his duly recorded Homestead, and that, under the Constitution of the State, the court is^without jurisdiction or authority to compel him to execute the agreement so far as said land is concerned. The court d, qua gave judgment in favor of plaintiff, ordering defendant, within thirty days from its date, to execute a deed conveying to plaintiff forty acres out of the one hundred and sixty acre tract claimed as his Homestead, and in default thereof, that plaintiff "have the right of selecting from the above described land, such forty acres as he may desire, and, upon filing such selection in the office of the clerk of court, and having same duly recorded in the book of Conveyances, he he decreed the absolute owner, and be put in possession of same.” Defendant forthwith applied for and obtained a devolutive appeal to the Circuit Court, which dismissed it (so far as the land is concerned) on the ground that it involved the Homestead right, which is within the exclusive appellate jurisdiction of this Court. Defendant then took out his present devolutive appeal to our Court. Before the lapse of the thirty days allowed in the judgment of the District Court, defendant executed a deed to plaintiff of forty acres of land, selected by himself, reciting, however, in the deed, that he had taken and intended to prosecute a devolutive appeal from 'the judgment, and reserved all his rights of appeal, and that he so acted because he was unable to take a suspensive appeal, and because, on his failure to do so, plaintiff would execute his judgment by selecting the most valuable forty acres, containing the dwelling, etc., of himself and family, and oust them from the possession thereof. [629] Motion to Dismiss. This motion is based on two grounds: 1st. That the case involves no right to Homestead, because the contract sued on is a sale of part of the Homestead, which is expressly permitted by the Constitution. 2d. That the defendant has acquiesced in the judgment by the voluntary execution thereof. So far as the iirst ground is concerned, it clearly goes to the merits of the case, and involves the very question to be decided by us as to the validity of the Homestead right set up by defendant. The second ground we consider untenable. The Code of Practice denies the right of appeal to a party when he has acquiesced in the judgment by executing it voluntarily. Article 567. Here was an alternative judgment, under the terms of which defendant was bouud, within thirty days, to convey to plaintiff forty acres of his homestead tract selected by himself, or, on his failure so to do, giving plaintiff the absolute right to select the land on which the dwelling-house of his family was situated, and to turn them out and take possession. Being unable to appeal suspeusively, what was defendant to do? The alternative presented to him was very similar to that discussed in a former case, where the Court said t “The, defendant, has to satisfy the judgment, or go to jail. There, is not here the acquiescence which the law contemplates. It must be the voluntary act of the debtor.” State ex rel. Hoey vs. Brown, 29 Ann. 862. Here the defendant had to select and convey the land or have himself and family turned out of house and home. . In another case, where payment was made under threat to seize and sell a merchant’s stock in trade, this was held not to be such voluntary execution as debarred appeal. Johnson vs. Clark, 29 Ann., 762, Tn a case yet more similar to the instant one, the judgment condemned defendant to deliver 6000 pounds of cotton, or in default thereof to pay $3120. Execution having issued, defendant delivered the cotton, which cost him only $1920, in order to avoid a seizure for the larger alternative sum named in the judgment, and this was held to be not a voluntary settlement, but one made “under compulsion of the law,” and not debarring a devolutive appeal. Yale vs. Howard, 24 Ann. 458. It is true that in the above case execution had been issued; but here execution was not necessary to expose the defendant to the danger [630] and damage which he sought to avert; because, under the terms of the judgment, by the mere lapse of thirty days, his right to select the forty acres to be delivered expired and plaintiff acquired the absolute right to make his own selection, which defendant would, thereafter, have been powerless to prevent. For these reasons the motion to dismiss the appeal is denied.