Bodeker v. Tutwiler

• Decision Date: 22 May 1924
• Docket Number: 6 Div. 155.
• Citation: 100 So. 776,211 Ala. 537
• Parties: BODEKER v. TUTWILER ET AL.
• Court: Alabama Supreme Court

100 So. 776

211 Ala. 537

BODEKER v. TUTWILER ET AL.

6 Div. 155.

Supreme Court of Alabama

May 22, 1924

Rehearing Denied June 26, 1924.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Mary Bodeker against Herbert Tutwiler and others to remove cloud on title to lands. From a decree dismissing the bill, complainant appeals. Affirmed.

Theodore J. Lamar and W. A. Weaver, both of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellees.

GARDNER J.

Bill by appellant to remove cloud on title to lot 4 in block 80 according to the survey of the Elyton Land Company, situated in the city of Birmingham, Ala.

Upon submission of the cause for final decree on pleadings and proof the chancellor was of the opinion that the complainant was not entitled to relief, and a decree was rendered dismissing the bill, from which decree the complainant has prosecuted this appeal.

The real estate here in controversy was the homestead of George Allen, who died June 2, 1882. He had purchased the property from one Jackson and at the time of his death had paid for the same in full, but no deed had been executed. He left surviving him a widow, Margaret Allen, and this complainant, Mary Bodeker, who was at that time about ten years of age. Subsequent to the death of George Allen the said Jackson, from whom he had purchased the property, executed a deed to his widow, Margaret Allen. The record title therefore appears to be in said widow by virtue of which fact the respondent interposed the defense of innocent purchaser. We rest our conclusion, however, upon the defense of adverse possession, and in so doing the questions arising upon the defense of innocent purchaser are laid out of view, and we treat the case as if in fact the record title had been in George Allen at the time of his death.

After the death of George Allen, his widow and this complainant continued to reside upon this property until December 28, 1886, when the said widow, Margaret Allen, sold the same to L. W. Johns, executing a warranty deed therefor with a recited consideration of $4,500, and upon the consummation of this sale complainant and her mother removed from the premises. Thereupon the said Johns went into the actual possession of the property and such actual possession has continued by him and his grantees in the chain of title to the time of filing this bill. It is admitted that this possession by all the grantees in respondents' chain of title from the date of the purchase by L. W. Johns in 1886 has been open, notorious, exclusive, and hostile under claim of right and uninterrupted.

The bill was filed by complainant upon the theory that this adverse possession was without effect upon her rights for the reason there was a life estate outstanding during all this period, the life tenant being still alive, citing Winters v. Powell, 180 Ala. 425, 61 So. 96; Wiley v. Wilhite, 201 Ala. 638, 79 So. 110.

This theory rests upon the insistence that upon the death of George Allen the fee to this property vested in this complainant as his heir at law subject to the life estate of the widow by virtue of the homestead exemption statute, and that the widow yet survives. The rights of the parties are to be determined by the law in force at the time of the death of George Allen. Bailes v. Daly, 146 Ala. 628, 40 So. 420. The estate of George Allen was never declared insolvent in the probate court.

As previously stated his death occurred in 1882, and the homestead exemption statute then in force was embraced within section 2821 of the Code of 1876. Under the law then in force, as construed by this court, the right of homestead exemption was that of occupancy and did not include the right to convey or incumber the homestead. As previously noted, the widow in 1886 conveyed this property to Johns and abandoned the same. The following excerpt from Banks v. Speers, 97 Ala. 560, 11 So. 841, is here pertinent:

"In Barber v. Williams, 74 Ala. 331, speaking of the homestead exemption reserved to the widow and minor children after the death of the head of the household, it was said 'the right *** is that of occupancy-it does not include a right to convey or incumber the homestead. *** The abandonment works a destruction of her privileges; and as she has no power of alienation, if she does alien it, like the alienation of her right of dower before assignment, the descent to the heir is not thereby interrupted, and he may maintain ejectment against her alienee, or those entering under him.' See, also, McConnaughy v. Baxter, 55 Ala. 379; Boyle v. Shulman, 59 Ala. 566. And in Miller v. Marks, 55 Ala. 322, 341, it was said: 'Homestead exemption under section 2, art. XIV, of the Constitution, being dependent on continued occupancy of the premises, ceases when that occupancy, from any cause, is put an end to.' We have shown that during the year 1888, Mrs. Burchfield and her children sold and conveyed the premises on which she had her homestead, and that thereupon she with her entire family removed from the premises. It is not claimed that she had any occupancy after that time. Under the law as it then stood, this was an abandonment of her homestead

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