Cowan v. Southern Ry. Co.

• Decision Date: 02 June 1898
• Citation: 23 So. 754,118 Ala. 554
• Parties: COWAN ET AL. v. SOUTHERN RY CO. [1]
• Court: Alabama Supreme Court

23 So. 754

118 Ala. 554

COWAN ET AL. v. SOUTHERN RY CO. ^[1]

Supreme Court of Alabama

June 2, 1898

Appeal from chancery court, Etowah county; J. R. Dowdell Chancellor.

Bill by C. R. Cowan, as administratrix, and others, against the Southern Railway Company. From a decree sustaining a demurrer to the bill, complainants appeal. Reversed.

The facts averred in the original bill show that the complainant during his lifetime, was seised and possessed of 300 acres of land in Etowah county, upon which he resided and made his home; that on August 12, 1886, while so residing upon said land, he executed a deed to one Printup, as president of the Rome & Decatur Railroad Company, conveying a strip of land not to exceed 100 feet in width from northeast to southwest across the said 300-acre tract, for the purpose of building and operating a railroad of said company across said land that at said time, the complainant, who was a grantor in said deed, was a married man, residing with his wife and family upon said lands, and that his wife did not join with him in said conveyance; that at the time of the execution of said deed, it was represented to the grantor that the line of railroad had been surveyed across said lands, and that the road would be built upon a certain line upon it, pointed out to the complainant, and which was described in the bill; and that the deed was intended to convey the strip of land along the line then pointed out; but that said railroad company located and constructed its line of railroad at a different point. It was further averred in the bill that the Rome & Decatur Railroad Company built its railroad during the year 1886, and that said railroad company and its successors have been in possession of said strip of land ever since, operating a railroad through and upon it; that said strip of land so occupied by the railroad is 100 feet wide; that the Rome & Decatur Railroad Company sold to the East Tennessee, Virginia & Georgia Railroad Company, and that the latter company sold to the Southern Railway Company, the defendant in the present bill; and that the defendant is now operating a railroad through and upon said strip of land. It was further averred in the bill that upon May 7, 1895, the complainant W. N. Cowan filed his declaration of claim of homestead in the office of the judge of probate of Etowah county, selecting and claiming out of the tract of 300 acres on which he resided, 160 acres, as a homestead; that the line of railroad in question was located across this 160 acres. It was also averred in the bill that the Rome & Decatur Railroad Company forcibly took possession of the strip of land different from that conveyed in the complainant's deed and built its railroad thereon.

The prayer of the bill was that the deed conveying the strip of land to the railroad company be declared null and void, and that a decree be rendered that the defendant and those under whom it claimed, wrongfully took possession of said lands, and that a reference be had to ascertain how much of the complainant's land had thus been appropriated, its value and the interest thereon; the damage to the balance of the land, and the value of the use and occupation of said strip; and that the defendant be required to pay the aggregate of said several sums to the complainant, and that if the defendant fails or refuses to pay said sum, that an injunction be issued to restrain the defendant, its officers and agents, from operating the said railroad over, through and upon said strip of land, until the defendant pay or cause to be paid complainant's damages and costs of suit as ascertained.

Pending this bill, the complainant died. Thereupon, Catherine R. Cowan, as administratrix and widow of William N. Cowan, deceased, and A. J. Wilson, as administrator of the estate of said William N. Cowan, deceased, and the heirs at law of said William N. Cowan, filed a bill of revivor and supplement, on February 27, 1896, wherein the death of the original complainant was averred, and it was further averred that the land, which had been set apart to the original complainants as a homestead, was duly set apart to Catherine R. Cowan, widow of the deceased, W. N. Cowan, as her homestead, under the statute; and that said lands were so set apart to her under proper proceedings of the probate court. It was then prayed in the said bill of revivor and supplement that the said suit should stand revived in the name of the complainants in the bill of revivor and supplement, and that said suit should be carried on and prosecuted between the parties in like manner as it would have been between the parties to the original suit.

The bill was subsequently amended by averring that the estate of the decedent, William N. Cowan, exceeded in value and area the exemptions allowed by statute, and that the 160 acres set apart to the widow did not exceed $2,000; and it was set apart in regular proceedings in the probate court, these proceedings being averred in detail.

To the bill as amended, the defendant demurred upon the following, among other grounds: "Fifth. Said bill shows on its face that there was no right of action in William N. Cowan at the time of the filing of the original bill. Sixth. Said bill shows on its face that the cause of action as to Catherine R. Cowan originated since the filing of the original bill." "Ninth. The bill as amended and revived, shows that the interest of Catherine R. Cowan accrued since the death of her husband, and that she took said homestead burdened with the easement of respondent's roadbed and right of way." "Sixteenth. It shows on its face that the selection of the homestead by both W. N. Cowan and Catherine R. Cowan was from a large body of contiguous land, being more than three hundred acres, and was long after defendant had acquired its title to the lands in controversy. Seventeenth. Said bill as amended, revived and supplemented, does not show when this respondent succeeded to the rights and possession of the East Tennessee, Virginia & Georgia Railway Company. Eighteenth. It does not show for what part of said damages this respondent is liable."

On the submission of the cause upon the demurrers, the chancellor rendered a decree sustaining the grounds of demurrer above set forth, and overruling the other grounds of demurrer. The complainants appeal from this decree, and assign the rendition thereof as error.

James Aiken, for appellants.

Burnett & Cueli, for appellee.

HARALSON J.

1. It has been definitely settled in this state, that under our constitution and laws, a right of way over the homestead granted and conveyed by the husband in an instrument in writing, duly executed by him, but in which the wife did not join, is void and has no operation as an estoppel or otherwise against the husband. McGhee v. Wilson, 111 Ala. 615, 20 So. 619, and authorities there cited; Alford v. Lehman, 76 Ala. 526; Marks v. Wilson (Ala.) 22 So. 134.

The deed of W. N. Cowan, executed by him alone, on the 12th August, 1886, in his lifetime, to the Rome & Decatur Railroad Company, of a right of way across lands which then constituted his homestead, in which his wife did not join was, therefore, a nullity, and, as for any title it conveyed to the railroad company, the lands remained his own, as though said...