Burrow v. Clifton

• Decision Date: 09 April 1914
• Docket Number: 642
• Citation: 65 So. 58,186 Ala. 297
• Parties: BURROW v. CLIFTON.
• Court: Alabama Supreme Court

65 So. 58

186 Ala. 297

BURROW v. CLIFTON.

No. 642

Supreme Court of Alabama

April 9, 1914

Appeal from Clay County Court; E.J. Garrison, Judge.

Bill by C.D. Clifton against J.W. Burrow. From a decree for complainant, defendant appeals. Affirmed.

Denson & Overton, of Wedower, for appellant.

Walter S. Smith, of Lineville, for appellee.

SAYRE J.

This bill was filed by appellee to enforce the specific performance of a contract by which appellee's husband now dead, assumed to buy and appellant to sell a certain 80-acre tract of land in Randolph county, and to enjoin an action of ejectment brought by appellant against appellee for the recovery of the land. By the contract, of date December 20, 1909, appellee's husband, W.L. Clifton, agreed to pay $900 in equal annual installments of $180, due November 1st in 1910, 1911, 1912, 1913, and 1914. All installments paid appellant agreed in writing to make a warranty deed. Clifton with his wife and minor children, went into possession, and since then the land has been occupied as a homestead. Clifton paid the first installment when due, and, though he died before the due date of the second, he had anticipated that in good part, and his widow paid the balance when due. Long before the third installment fell due, appellant brought his action at law against appellee for the recovery of the land. Thereupon, on August 26, 1912, appellee filed her bill.

As a bill for specific performance the bill cannot be maintained for two reasons: The bill is prematurely filed; to such a bill seasonably exhibited in the right of a deceased vendee his heirs must in the ordinary case be parties. McKay v Broad, 70 Ala. 377. And where the homestead is transmitted to and becomes absolute in minor children, they at least must be parties. So, then, the equity of the bill at this time depends upon the character of appellee's interest in the land as widow of the deceased vendee and the necessity that the court of equity should intervene to protect her possession pending the performance of the contract.

Appellant makes the preliminary objection to appellee's bill that the latter has mistaken the venue; that her bill should have been filed in Randolph county, where the land is. Appellant lives in Clay, and for that reason appellee's bill was filed in that county. Appellee, as the statute prescribing the venue of bills in equity (Code, § 3093) has been construed, might have filed her bill in either county. Ashurst v. Gibson, 57 Ala. 586; Harwell v. Lehman, 72 Ala. 345; Reeves v. Brown, 103 Ala. 537, 15 So. 824.

The statute, declaring the constitutional right, provides that the homestead of every resident of this state "shall be to the extent of any interest he may have therein, whether a fee or less estate, or whether held in common or in severalty, exempt." Code, § 4160. It also provides that "the homestead of any resident of this state, leaving surviving him at his death a widow and minor child or children *** shall be exempt from administration and the payment of debts in favor of such widow and minor children, or either, in any event, during the life of the widow, or the minority of the child or children, whichever may last terminate." Section 4196. And in certain conditions the...