Bishop v. Johnson

• Decision Date: 26 March 1942
• Docket Number: 6 Div. 914.
• Citation: 242 Ala. 551,7 So.2d 281
• Parties: BISHOP et al. v. JOHNSON.
• Court: Alabama Supreme Court

7 So.2d 281

242 Ala. 551

BISHOP et al. v. JOHNSON.

6 Div. 914.

Supreme Court of Alabama

March 26, 1942

Rehearing Denied April 16, 1942.

Appeal from Circuit Court, Marion County; R.L Blanton, Judge.

Ralph W. Quinn and W.F. Spencer, both of Birmingham, for appellants.

Kelly Fite, of Hamilton, and Arthur Fite, of Jasper, for appellee.

THOMAS, Justice.

The bill as amended was a statutory effort to quiet title to the lands described therein by Lewis Johnson.

The cross bill of respondents, as amended, makes the following averments, viz.: "That respondents are owners of an undivided three-sixth reversionary or remainder interest in said lands, each of them being the owner of an undivided one-sixth of such interest or remainder by reason of their having inherited the same as their homestead from their father, R.L. Bishop, who died intestate in Marion County, on May 18, 1912, and who, at the time of his death, owned and was possessed of and had title to said lands, and was residing upon and occupying the same as his homestead, which said lands did not exceed 160 acres in area and $2,000 in value, and was all of the land he owned at the time of his death.

Complainant's answer to the amended cross bill avers that the complainant and those through whom he claims title, by purchase from the respondents, have had open, actual, exclusive and adverse possession of the lands for more than ten successive years before the filing of this suit.

The case was submitted for final decree upon an agreed statement of facts. In substance they are that the complainant Lewis Johnson and the respondents Oscar Bishop, Lizzie Pickard and Bessie Kennedy are claiming their respective interests in the lands described from a common source, towit, the father of the respondents, R.L. Bishop, deceased, who died intestate on May 18, 1912, and left surviving him a widow, Martha F Bishop (Baker) and six minor children, of whom respondents herein were the youngest at the time of the father's death and were of the following ages: Oscar, age eight years Lizzie, age six years, and Bessie, age five months.

At the time of the father's death he owned and occupied the lands described in the amended bill as his homestead. Said lands were all of the lands owned by him at the time of his death and did not exceed the area of 160 acres and were not of greater value than $2,000. The said lands were never set apart to said widow and minor children as their homestead and no dower was ever assigned. Neither was there an administration of the Bishop estate.

The widow and minor children occupied said lands as their homestead until January, 1926. Prior to this time, on November 21, 1925, the widow conveyed the lands by deed to E.C. Brock, who knew the widow and two of the minor children were living upon and occupying the lands as their homestead. These facts were known to subsequent parties at interest towit, C.R. Hagen, O.W. Phillips, S.W. Lee and the complainant Lewis Johnson at the time each, respectively, became purchasers of whatever interest the said widow (Martha F. Baker) owned in said land.

Certain proceedings in the probate court were instituted by the widow as guardian of one of the appellants to sell said land and the interest of the minors therein. These proceedings and attempted sale were never consummated as it appears from the recitals in a deed from the alleged purchaser at such attempted sale, namely, Ben L. Bishop and wife to the widow and minor children of R.L. Bishop. The recitation thereof is as follows: "The sale authorized by decree of the Probate Court of Marion County, Alabama in a certain proceedings filed in said Court by Martha F. Bishop, as guardian, never having been consummated, and no deed having been made by said guardian to the undersigned Ben L. Bishop under said decree; this quit claim deed is executed by the undersigned for the purpose of reinvesting all right, title and interest owned by the grantees herein in said lands prior to the filing of said proceedings in said Probate Court."

It is admitted in the agreed statement of facts that: "There was no actual consideration paid on execution of the deeds of Frances Bishop, guardian to Ben L. Bishop, Vassie Marner and others to Ben L. Bishop; and Ben L. Bishop and wife to Martha F. Bishop."

It is to be noted that the date of the proceedings and conveyances in question was December 30, 1920, or some antecedent date.

In complainant's answer to the amended cross bill the facts as affecting the minors are thus averred: " * * * Oscar Bishop and Lizzie Pickard and her husband joined others in conveying this land to B.L. Bishop in August, 1923. Frances Bishop, as guardian of Bessie (Bishop) Kennedy, conveyed to B.L. Bishop in August, 1923. B.L. Bishop conveyed to Martha F. Baker in August, 1923, by warranty deed. She and her husband conveyed to E.C. Brock in November, 1925, by warranty deed. Brock conveyed to C.R. Hagan in June 1928. Hagan conveyed half of the land to Lewis Johnson in October, 1928, and the balance to O.W. Phillips in December, 1932, and Phillips conveyed to S.W. Lee January, 1934, and Lee conveyed to Lewis Johnson in December, 1936. * * *"

Complainant is claiming the fee simple title to the said lands by reason of the purchase of same by his predecessors in title from Martha F. Baker (formerly Martha F. Bishop), the widow of R.L. Bishop, deceased, the life tenant therein as said widow. The complainant Johnson further claims the title by reason of adverse possession under the deed executed by said widow to E.C. Brock on November 21, 1925, and by intervening deeds from Brock and others under which they respectively went into possession of the land.

Respondents Oscar Bishop, Lizzie Pickard and Bessie Kennedy are claiming an undivided three-sixths reversionary or remainder interest in and to said lands; their "reversionary interest to begin in esse at the death of their mother, the life tenant therein."

The ancestor died in 1912. The rights of the parties are judged by the statute in force as of that date. Code 1907, §§ 4196, 4198, Code 1940, Tit. 7, §§ 661, 663; Haynes v. Haynes, 236 Ala. 331, 181 So. 757; Williams v. Overcast, 229 Ala. 119, 155 So. 543.

Since the Code of 1907 the widow and minor children of a decedent do not obtain absolute fee simple title to a homestead left by decedent until the same is set apart and there is a judicial determination and ascertainment of the required necessary and essential facts. Code 1907, §§ 4196, 4198, Code 1940, Tit. 7, §§ 661, 663; Sims v. Kitchens, 233 Ala. 484, 172 So. 638; Cox v. McLemore, 236 Ala. 559, 183 So. 860; Martin v. Cothran, 240 Ala. 619, 200 So. 609; Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113; Franklin v. Scott, 227 Ala. 101, 148 So. 833; Taylor v. Dew, 236 Ala. 624, 184 So. 184; Haynes v. Haynes, 236 Ala. 331, 181 So. 757, supra.

In Franklin v. Scott, 227 Ala. 101, 148 So. 833, 834, supra, it should be observed that the ancestor died when the Code of 1907 was in force and effect, and the rights of the widow and minors are judged as of that date. In that case, it is declared of the statutes, Code 1923, §§ 7918, 7929, 7951 and 7952, Code 1940, Tit. 7, §§ 661, 672, 697, 698, as follows:

"It is the long settled law of Alabama that, under present statute, where the homestead occupied by the decedent at his death is a distinct and separate parcel from his other lands, and is less in area and value than the widow's homestead allowance, no allotment is required. The law intervenes and makes the allotment. The widow takes a life estate which she may convey to another as any other life estate. Tartt v. Negus, 127 Ala. 301, 28 So. 713; Kyser v. McGlinn, 207 Ala. 82, 92 So. 13; Johns v. Cannon, 199 Ala. 138, 74 So. 42; Jones v. Stokes, 179 Ala. 579, 60 So. 280; Bodeker v. Tutwiler, 211 Ala. 537, 100 So. 776. [Italics supplied.]

"Appellant complains that section 7952 expressly requires an allotment under the statute in order to preserve it from abandonment and forfeiture by removal. This same statute was the one construed in Tartt v. Negus, supra, in the light of similar principles theretofore declared in cases cited in that opinion.

"The statute has been re-enacted with this known construction. Indeed, section 7920, a later statute, was passed in recognition of the doctrine of Tartt v. Negus, modifying such rule only in that a judicial ascertainment of essential facts is now required before an absolute title vests in the widow as against the heir, where the homestead is the only real estate owned by a decedent."

Thus the widow in the instant case had the right to convey her life estate. In order, however, that the title to homestead property left by the decedent at the time of his death to his widow and minor heirs shall vest in them absolutely and in fee simple, said property must be set apart, and it must be judicially determined, within twenty years from the death of the decedent, that the same did not exceed 160 acres in area and $2,000 in value at the time of his death. Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113, supra.

The policy of the law is to secure to the widow and minor children a homestead and homestead rights, throwing around them special protection, and it should not be easy to deprive them of the same. In Lewis v. Lewis, 201 Ala. 112, 115, 77 So. 406, 409, it was held that: "The homestead laws are to be liberally construed, to the end of advancing their beneficial objects, by giving effect to the manifest purpose of the Constitution makers and of the Legislature in conferring the rights."

Hence the homestead right in the widow and minors is enjoyed concurrently and successively during the life of the widow or the minority of the minor child or children or any one of...