Clark v. Bird

• Decision Date: 17 December 1908
• Citation: 48 So. 359,158 Ala. 278
• Parties: CLARK ET AL. v. BIRD.
• Court: Alabama Supreme Court

48 So. 359

158 Ala. 278

CLARK ET AL. v. BIRD.

Supreme Court of Alabama

December 17, 1908

Rehearing Denied Feb. 5, 1909.

Appeal from Chancery Court, Limestone County; W. H. Simpson Chancellor.

Bill by Charles Bird against John A. Clark and another. From an order denying a motion to dismiss the bill and overruling demurrers, and decree for complainant respondents appeal. Reversed and rendered.

The contract sought to be enforced was as follows: "Know all men by these presents, that I, J. A. Clark, as principal, am held and firmly bound to Charles Bird in the penal sum of $500, for payment of which, well and truly to be made, I bind myself, my heirs, executors, and administrators by these presents. Signed and sealed by me this the 4th day of November, 1899. The condition of this obligation is such that, whereas, said J. A. Clark has bargained and sold to the said Charles Bird, to wit, certain tracts of land as follows N. 1/2 of W. 1/2 of S.W. 1/4 of Sec. 31, T. 3, R. 4 W., for the sum of $500, payable in five notes, with interest after maturity. Said J. A. Clark shall by deed alien and convey to the said Charles Bird the land above described in fee simple with general warranty, then this obligation to be null and void; otherwise, to remain in full force and effect." Then follows the five notes executed by Bird to Clark. Four of the notes were paid, and payment of the fifth note refused, and ejectment brought, which action the bill was brought to reform.

W. R Walker, for appellants.

W. T. Sanders, for appellee.

ANDERSON J.

The 40 acres in controversy was at the time of the attempted sale a part of the homestead, and the bond executed by John A. Clark, not being signed and separately acknowledged by his wife, was void as an obligation to convey, and was not the subject of a specific enforcement. Moses v. McCain, 82 Ala. 370, 2 So. 741; McGhee v. Wilson, 111 Ala. 619, 20 So. 619, 56 Am. St. Rep. 72. Nor does a conveyance of the homestead which does not conform to the statute (section 4161 of the Code of 1907) operate as an estoppel against the husband, notwithstanding he has been paid a valuable consideration. It is simply void--a nullity to all intents and purposes. Halso v. Seawright, 65 Ala. 431; Alford v. Lehman, 76 Ala. 526; Crim v. Nelms, 78 Ala. 604. The renting of these 40 acres, which was a part of the homestead, the owner at the time residing on the other portion, did not operate as an abandonment or affect its character as a homestead. Bailey v. Dunlap, 138 Ala. 415, 35 So. 451; Metcalf v. Smith, 106 Ala. 301, 17 So. 537. The chancellor therefore properly decreed that the contract was a nullity and not the subject of a specific performance.

The Constitution of 1901 (section 205) expressly exempts the homestead from the payment of any debt, except by a mortgage or other alienation, with the voluntary assent and signature of the wife; and section 4161 of the Code of 1907, provides the method of giving the assent. The only exception made for binding the homestead for a debt, except as specially provided for, is under section 207 of the Constitution, in favor of laborers' and mechanics' liens. To require the refunding of the purchase money, paid under a void contract of purchase, as a condition precedent to the recovery of the homestead, would be but the fastening of a lien or incumbrance on the same, directly in the teeth of the Constitution, thus creating upon the homestead, by way of estoppel, a charge or lien, which could not be placed thereupon by the direct and voluntary act of the owner, except in the manner and form required by the Constitution and statute. Nor can we understand how a court of equity can fasten a lien on the homestead for improvements, made by one in possession under a void contract of purchase, upon the theory of an equitable estoppel, thus doing, through the machinery of a court indirectly, what the parties could not have done directly, except in a certain manner. The chancery court cannot fasten a lien on the homestead, growing out of the acquiescence by the owner, upon the idea that it amounts to...