Cox v. Holcombe

• Decision Date: 12 June 1889
• Parties: COX v. HOLCOMBE.
• Court: Alabama Supreme Court

6 So. 309

87 Ala. 589

COX v. HOLCOMBE.

Supreme Court of Alabama

June 12, 1889

Appeal from chancery court, Pickens county; THOMAS W. COLEMAN Chancellor.

E D. Willett and J. C. Johnston, for appellant.

D C. Hodo, for appellee.

CLOPTON J.

On October 22, 1878, Robert Bridges on his wife, Frances Bridges joined in a conveyance of real estate to appellant upon a recited valuable consideration. The land conveyed included the homestead of the grantor. The officer's certificate of the wife's acknowledgment does not show a substantial compliance with the form prescribed by the statute in such cases; it omits to affirm a privy examination of the wife and to exclude fear, constraint, or threats on the part of the husband. Appellant seeks by the bill to vacate and annul proceedings in the probate court, by which the homestead exemption was allotted to Frances Bridges after the death of her husband, and to enjoin the enforcement of a judgment recovered by her against appellant for the possession of the land exempted. The ground of relief is that the officer before whom the wife's acknowledgment was made omitted to certify her examination and acknowledgment in the manner required by the statute, from mistake or ignorance of the law, though, as the bill alleges, she was in fact examined separate and apart from her husband, and acknowledged that she signed the deed of her own free will and accord, and without fear, constraint, or threats on his part. The bill prays that complainant be allowed to prove that Frances Bridges was so examined, and made such acknowledgment, so as to constitute the deed a valid and legal conveyance, and, failing in this, that the conveyance may be enforced as an executory contract.

In Gardner v. Moore, 75 Ala. 394, it was held that where a mortgage of a homestead was executed by a married man and his wife, in strict conformity with the statute, a court of equity will assume jurisdiction to correct a misdescription in the land conveyed and intended to be conveyed. The present case does not come within this decision. It is not claimed that there is any mistake in the description of the subject-matter or terms of the conveyance. On the case made by the bill the jurisdiction of the court is invoked to aid a defective certificate of acknowledgment, or to compel the specific performance of an agreement to convey by a married woman. While no case has been heretofore presented in which the wife was in fact examined separate and apart from her husband touching her signature to an alienation of the homestead, and made the statutory acknowledgment of her voluntary signature and assent, and the officer before whom the acknowledgment was made omitted to certify in substantial compliance with the statute the principles which underlie the case, and are decisive of the question involved, should be regarded as well settled. An alienation of the homestead by a married man, not executed by the wife in the manner prescribed by the statute, has been uniformly held to be a nullity, inoperative to confer any rights. Such alienation does not possess the force and effect an imperfectly executed conveyance. To give it operation there must be a subsequent acknowledgment by the wife properly certified, made voluntarily, and with intent to cure the defect. Balkum v. Wood, 58 Ala. 642. The constitution and statute have reference to some mode of alienation by which the title passes in pr senti. They do not contemplate instruments which can be regarded only as agreements to convey. From the performance of an executory contract to alienate the homestead, which is a nullity because of the incapacity of the wife to make such agreement, she may withhold her signature and assent, and the court is powerless to compel performance. It is well settled by our decisions that the conveyance of the homestead of the husband, though signed by the wife, if not...