Claborne v. Nichols

• Decision Date: 05 February 1920
• Docket Number: 7 Div. 42
• Citation: 85 So. 415,204 Ala. 282
• Parties: CLABORNE v. NICHOLS.
• Court: Alabama Supreme Court

85 So. 415

204 Ala. 282

CLABORNE v. NICHOLS.

7 Div. 42

Supreme Court of Alabama

February 5, 1920

On Rehearing, May 20, 1920

Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.

Ejectment by J.B. Nichols against V.A. Claborne. Judgment for plaintiff, and defendant appeals. Affirmed.

A Latady, of Birmingham, and E.O. McCord, of Gadsden, for appellant.

W.R Bradford, of Albertville, for appellee.

McCLELLAN J.

The plaintiff (appellee) instituted this action of statutory ejectment against the appellant to recover the northwest quarter of section 3, township 8, range 6, in De Kalb county. The trial was by the court without a jury. Judgment was accorded plaintiff for an undivided one-eleventh interest in the land. The only assignment of error urged in the brief for appellant is predicated, in effect, of the court's conclusion of fact, leading to the judgment rendered. The determining question was and is this: Whether the land in suit was the "homestead" of John G. Nichols plaintiff's father, at the time of his death in January 1898, within the purview of Code 1896, § 2071, which provides:

"When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title to such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not."

If the land in question was impressed at the time of John G. Nichols' death (January, 1898) with the homestead character and the other conditions prescribed in this statute were present, then plaintiff was not entitled to recover; plaintiff being an adult at the time, and a widow and five minor children also surviving the decedent.

Since the trial was by the court, without jury, the evidence entirely oral--so far as the main issues were concerned--the conclusion of the court will not be disturbed unless it is plainly contrary to the great weight of the evidence. McCay v. Parks, 201 Ala. 647, 79 So. 119, and previous decisions there cited, among others readily accessible. The evidence has been carefully examined; and the finding of the court below is at least so far justified by this theory, projected by the evidence, as to forbid, under the stated rule, a conclusion at variance with that attained by the court hearing and observing the witnesses, viz., that the land described in the complaint was not occupied as a homestead by John G. Nichols at the time of his death or was not so used by him as to impress the homestead...