Bassett v. Powell

ANDERSON, J. The land in question was the homestead of George White at the time he conveyed the life estate in same to his wife, and whether the deed conveyed the remainder to his heirs or reserved the same to himself matters not, as there was no separate voluntary release of same by the wife, as is required by law, and said deed was inoperative as an alienation of the homestead right. The deed to the wife may have operated to pass the legal title to the life estate to her; but, being without her voluntary signature, said conveyance was subject to all pre-existing homestead rights. We think that what was said in the case of Turner v. Bernheimer, 95 Ala. 241, 10 South. 750, 36 Am. St. Rep. 207, is decisive of the case at bar. There the court, after discussing a conveyance of the homestead by the husband to the wife, speaking through McClellan, J., among other things said: “It would seem, then, in all reason, that a conveyance of homestead premises by the husband to the Avife, while having effect as an alienation of the land in the sense of passing the legal title to her, is yet not an alienation of the homestead,, since that does not thereby pass either from the husband, the wife, or the family, but is still in every essential quality an attribute, Avith respect to possession, enjoyment, and all the rights necessary to its protection as exempted property, the homestead alike of the husband, the wife, and their children. And so it is said further by the eminent author quoted "above that laws requiring the voluntary assent and signature of the wife to an alienation of the homestead ‘are not intended to interpose obstacles in the Avay of a conveyance of the homestead to the wife, or to the Avife and children, with the consent and approval of the wife, whatever may be the form of such conveyance.’ — Thompson on Homestead, [344] etc., § 473. And the adjudged cases fully support, not only this text, but the conclusion we have arrived at, that such a conveyance is not an alienation of the homestead within the meaning of the Constitution and statutes of Alabama, but is valid for the pui’pose of passing the legal title of the land into the wife, subject to all pre-existing homestead rights, without the voluntary signature and assent of the wife. — Harsh v. Griffin, 72 Iowa, 608 [34 N. W. 441]; Burkett v. Burkett, 78 Cal. 310 [20 Pac. 715, 3 L. R. A. 781], 12 Am. St. Rep. 58; Riehl v. Bingenheimer, 28 Wis. 84; Baines v. Baker, 60 Tex. 140; Ruohs v. Hooke, 3 Lea [Tenn.] 302, 31 Am. Rep. 642; Spoon v. Van Fossen, 53 Iowa, 494 [5 N. W. 624].” It results that the deed in question was not an alienation of the homestead, and to all intent and purpose the right to sarnie remained in the wife, just as if the deed had not been made, and, as the husband owned no other land, the title to the homestead vested absolutely in the wife upon his death, without administration or selection. The statutes, as existing under the Code of 1896, control the present case, which, as construed in the case of Faircloth v. Carroll, 137 Ala. 243, 34 South. 188, and cases there cited, sanction the holding that the title to the homestead vests absolutely in the widow, if there is no other real estate, without administration or selection. The trial court erred in giving the general charge for the plaintiffs, and in not giving it for the defendants, and the judgment of the circuit court is reversed. As the case was tried upon an agreed statement of facts, a remandment can serve no good purpose, and a judgment is here rendered for the appellants, the defendants in the court below. — Code 1907, § 2890; Pike v. Bright, [345] 29 Ala. 332; Lynch v. State, 147 Ala. 143, 39 South. 912, 10 Ann. Cas. 910. Reversed and rendered. All the Justices concur.