Birmingham Securities Co. v. Hodges

SOMERVILLE, J. On a former appeal in this case it was held that a demurrer to the bill was properly sustained. — Hodges v. Birmingham Securities Co., 187 Ala. 290, 65 South. 920. The gravamen of that decision was that Mrs. Hodges, the respondent, did not, by claiming and having allotted to her, as her widow’s homestead, a certain 60 acres thus owned and occupied by her husband at his death, thereby estop herself from also subsequently claiming an adjoining 20-acre tract (a part of the husband’s actual homestead), which his heirs had taken possession of and sold by mesne conveyance to complainant. (1) The conclusion was grounded, in part at least, on the fact that the probate petition, relied upon by complainant as an estoppel against Mrs. Hodges, showed upon its face by a clear recital, that she claimed only 60 acres as her homestead under the mistaken idea that her husband did not own the othei* 20, and hence that it was not'subject to her claim. A re-examination of the question convinces us, in spite of the able argument presented for appellant, that the probate proceeding in question, in view of all the allegations of the petition, cannot be justly regarded as an unqualified renunciation by the widow of any homestead interest she might have in other property that belonged to her hus [199] band. Certainly tbe petition bore upon its face an explicit negation of one of the most vital elements of an estoppel, viz., knowledge by the petitioner of the right she was supposedly abandoning. — Crosthwaite v. Lebus, 146 Ala. 525, 41 South. 853; 16 Cyc. 759, 762. Hence it could give no assurance to purchasers from the heirs that she would not assert her claim whenever she became aware of her error. (2) Since the last remandment, the bill has been amended by the allegation of certain facts which, it is urged, meet the deficiency pointed out on the former appeal. It is now alleged that Mrs. Hodges filed her said petition with knowledge that her husband had formerly owned this 20-acre tract as part of his homestead, and that he had “relinquished his claim to the said 20 acres of land and ceased to regard it as a part of his said homestead; this in view of the fact that it had been sold for taxes years before, and the purchaser was, when Hodges died, paying taxes and exercising ownership over the tract. So far as the estoppel is concerned, this amendment does not strengthen it. On the contrary, it serves to emphasize and confirm the theory that Mrs. Hodges was ignorant of her rights in the premises, and that she failed to claim because she believed the title to this tract had been lost to her husband. (3) But the effect of the amendment is more serious than this. It shows that Hodges died neither occupying nor claiming the 20-acre tract as part of his homestead, and that, under section 2069, Code 1896, not being part of the actual homestead, it descended to the heirs without interception by any statute conferring title upon the widow. Clearly then, if the bill, as amended, refutes the assumption of legal title in the widow, [200] Mrs. Hodges (as insisted in brief for appellant), the legal title was in the Hodges heirs, who sold the tract to appellant, and the essential equity of the bill is destroyed, for the bill can be maintained only upon the theory of legal title in Mrs. Hodges. If the 20-acre tract was not a part of the actual homestead, or if the whole tract of 80 acres exceeded' in value $2,000 at the time of Hodges’ death, these facts and their legal consequence can he shown in defense of the ejectment suit now pending. The demurrer to the amended hill was properly sustained, and the decree of the chancellor will be affir,med. Affirmed. Anderson, C. J., and Mayfield and Thomas, J.J., concur.