Moss v. Nye

SOMERVILLE, J. — The sole question of merit presented by this appeal is whether the provision found in section 4196 of the Code of 1907, that when the decedent’s estate is insolvent his homestead shall vest in the widow and minor children absolutely, “and shall not be sold or partitioned by order of any court until the death of-the widow and the youngest child is of age,” etc., is retroactive in its operation, so as to thus restrict the judicial sale or partition of homesteads already vested in the joint ownership of the persons designated, by the death of the husband and father prior to the enactment of the quoted provision. Partition, including sale for distribution, among the joint owners of land, is a matter of right. — Donnor v. Quartermans, 90 Ala. 164, 8 South. 715, 24 Am. St. Rep. 778; Gore v. Dickinson, 98 Ala. 363, 11 South. 743, 39 Am. St. Rep. 67. It is unquestionably a valuable right, since it vitally affects the potential use and availability of the cotenant’s estate. It is incident to all tenancies in common, however created, unless restricted or prohibited by contract or by law. Prior to the adoption of the present Code, homesteads vesting under the statute in the widow and minor children were subject to the exercise of this right by any of the tenants in common. — Faircloth v. Carroll, 137 Ala. 246, 34 South. 182. There is nothing in the statute referred to, either expressed or implied, indicative of a legislative purpose to extend the operation of the quoted provision to jointly [547] owned homesteads already vested under the former statute. The rule of construction is well settled. “Retrospective statutes, when within legislative competency, are not favored, and it is a sound rule of judicial construction that they shall operate prospectively only, unless the terms show a clear legislative intent that they shall operate retrospectively. — Cooley’s Con. Lim. 369; Sedgwick on Stat. and Cons. Law, 161. The statutes excluded from judicial favor, and subjected to this strictness of judicial construction — statutes which may be properly denominated retrospective — are such as take away or impair vested rights, acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability, in respect to transactions or considerations already past.” — Ex parte Buckley, 53 Ala. 42, 54. We think it clear that the provision in question must be construed as not retroactive in its intended operation. 36 Cyc. 1209d, 1210e. We need not inquire nor determine whether it is within the legislative power to have made it so. An able discussion of that question will be found in the case of Gladney v. Sydnor, 172 Mo. 318, 72 S. W. 554, 60 L. R. A. 880, 95 Am. St. Rep. 517. There is no merit in appellant’s suggestion that this provision was designed to correct an immoral and unconscionable evil, and that therefore a retroactive operation is favored by the law. The question is one of policy merely, and not of morals, and the policy of preventing any partition during the widow’s life, even with her consent, is at least fairly debatable. The fee-simple title to this homestead being vested in complainant and respondents by force of law without judicial allotment, complainant is entitled to a sale thereof for division; and there is no occasion for the intervention of a court of equity to ascertain and declare [548] the insolvency of the decedent’s estate in order to vest tbe absolute title. Tbe rulings of tbe chancellor in sustaining tbe demurrers to tbe cross-bill are in accordance with the views above expressed, and tbe decree will be affirmed. Affirmed. All tbe Justices concur, except Dowdell, C. J., not sitting.