Burgin v. Hodge

• Decision Date: 13 April 1922
• Docket Number: 6 Div. 570.
• Citation: 93 So. 27,207 Ala. 315
• Parties: v. HODGE ET AL. BURGIN ET AL.
• Court: Alabama Supreme Court

93 So. 27

207 Ala. 315

BURGIN ET AL. v. HODGE ET AL.

6 Div. 570.

Supreme Court of Alabama

April 13, 1922

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge

Bill by George W. Burgin and others against U.S. Hodge and others, to cancel certain deeds and mortgages and to declare certain other deeds valid. There was answer and cross-bill, and from a decree granting affirmative relief under the cross-bill and denying relief under the original bill, complainants appeal. Affirmed.

Pinkney Scott, of Bessemer, for appellants.

S. D Logan, of Centerville, and McEniry & McEniry, of Bessemer for appellees.

THOMAS J.

The bill and proof were insufficient under the statute to quiet title to real estate. Code, § 5443; Davis v Daniels, 204 Ala. 374, 85 So. 797. It is not averred and shown that complainants were in the peaceable possession of the land, actual or constructive, as distinguished from a disputed or "scrambling possession." Foy v. Barr, 145 Ala. 244, 39 So. 578; Carr v. Moore, 203 Ala. 223, 82 So. 473.

The foundation of complainants' claim or title to the land is upon an alleged mortgage, purporting to have been executed by George W. Burgin and others (not by his wife) to Nelson Burgin and Joe Hicks, the deceased husband of complainant Stella Hicks. The averment of the bill as to said Hicks is that since the date of the execution of said mortgage, on or about May 25, 1906, Joe Hicks has died, leaving Stella Hicks the sole owner of his interest in said debt (meaning the mortgage). This averment, and the proof or lack of it supporting the same, gave Stella Hicks no title or interest in the land. Code, § 3754, subd. 6. There was no allegation or proof that complainant Stella Hicks was ever at any time in possession of the land.

Under the phase of the bill seeking to show a superior title in Nelson Burgin and Stella Hicks under the mortgage by George W. Burgin to Nelson Burgin and Joe Hicks, and the averred reason that the land sought to be made the subject of the mortgage was, at the time of the execution of the same, the homestead of George W. Burgin, the proof fails, for that George W. Burgin testified that at the date of his execution of that mortgage (on or about May 25, 1906) he was living on the land with his first wife, Stella, and their children, and that she did not sign the mortgage. An examination of the mortgage exhibited discloses that such grantor in possession giving the mortgage, was not joined therein by the wife. Such a conveyance did not convey a homestead right or interest of the mortgagor to the grantees therein, Nelson Burgin and Joe Hicks. Code, § 4161; Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742. Where the lands sought to be conveyed were of less area and value than that allowed by law and were at the time of the attempted conveyance occupied as a homestead, and the attempted conveyance was signed by the husband alone, or the same is defectively executed by the wife, it has been declared to be a nullity. McGuire v. Van Pelt, 55 Ala. 344; Wallace v. Feibelman, 179 Ala. 589, 60 So. 290.

Respondent Miller and those holding under him sufficiently showed that they had derived title through a judgment against said George W. Burgin execution thereon, levy thereof, and a sale thereunder, which was averred by the bill admitted by the answer of respondents and shown by exhibits in evidence pertaining to same-the necessary requirements being in such a case "a judgment, execution, levy, and the sheriff's deed." Ware v. Bradford, 2 Ala. 676, 36 Am Dec. 427; Love v. Powell, 5 Ala. 58; Smith v. Houston, 16 Ala. 111, 114; Clark v. Spencer, 75 Ala. 49, 57. In the Clark-Spencer Case, supra, Mr. Justice Stone observed of a defendant in execution that, if he "knowingly permit his property to...