Cox v. McLemore, 8 Div. 894.

• Decision Date: 13 October 1938
• Docket Number: 8 Div. 894.
• Parties: COX ET AL. v. MCLEMORE ET AL.
• Court: Alabama Supreme Court

183 So. 860

236 Ala. 559

COX ET AL. v. MCLEMORE ET AL.

8 Div. 894.

Supreme Court of Alabama

October 13, 1938

Appeal from Circuit Court, Limestone County; W. W. Callahan, Judge.

Action in ejectment by Hannah Cox and others against Ellen McLemore and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

T. S Woodroof and J. G. Rankin, both of Athens, for appellants.

R. B Patton, of Athens, for appellees.

BROWN Justice.

This appeal is from a judgment for the defendants rendered on the verdict of the jury directed by the court through the affirmative charge, with hypothesis, in their favor.

The plaintiffs are the collateral heirs at law of William Davis deceased, to whom the lands were conveyed by warranty deed by Melvin McLemore, then in possession, and possession delivered to the grantee Davis, in the year 1920.

Davis resided on the lands in suit, as his homestead from the time he went into possession until his death in April, 1921. He left surviving his widow, M. A. Davis, and no children or lineal descendants.

The widow, who was present at the trial and testified as a witness, married Bates, and by warranty deed of date January 16, 1926, M. A. Bates and husband conveyed the lands in suit to Mat B. McLemore, who had the deed entered of record on the date of its execution, and went into possession and so remained until this suit was instituted against him. McLemore died pending this suit, and the same was revived against his widow and heirs at law.

Davis died intestate; there was no administration on his estate; and though the lands consist of only 74 acres, and of value less then $2000, his widow took no steps to have the same set apart as exempt by proceeding in the Probate Court.

The question propounded by this appeal is: What if any title McLemore took under the conveyance of Bates and husband?

The appellant, on the authority of Tharp v. Johnson et al., 219 Ala. 537, 122 So. 668, Chavers v. Mayo, 202 Ala. 128, 79 So. 594, and Gilbert v. Pinkston, 167 Ala. 490, 52 So. 442, 140 Am.St.Rep. 89, contends that the conveyance of Bates and husband to McLemore, the property not having been claimed and set apart as exempt by a proceeding in the Probate Court, as authorized by the statute, was an abandonment of possession by the widow and worked a forfeiture of her right of homestead exemption, and the heirs at law of Davis, the deceased husband, were entitled to assert their title and recover possession from the grantees of Bates and husband.

In Tharp v. Johnson and Chavers v. Mayo, supra, the court was applying the law governing the right of homestead exemption, and the forfeiture thereof as it existed under the Code of 1876. And in Gilbert v. Pinkston, under the Code of 1886, in all respects the same as the Code of 1876. The Act of February 28, 1889, Acts 1888-89, p. 113, now § 7952 of the Code of 1923, changed the law in respect to abandonment of such right by providing that: "When homestead exemption has been allotted to the widow and minor child or children, or either, * * * they shall not be held to have abandoned or forfeited the same by a removal therefrom." [ Italics supplied.]

That Act, no doubt, was passed to change the law as declared in Barber v. Williams, 74 Ala. 331, to the effect that the abandonment of possession of the homestead by the exemptioner worked a forfeiture of the right of exemption, and in Banks v. Speers, 97 Ala. 560, 11 So. 841, it was held that said Act was not retroactive, but it was observed, by the then Chief Justice [page 844]: "If the statute we have copied had been enacted before the sale was made to Banks, we need not and do not decide that such sale and abandonment of the possession would work a forfeiture of the homestead right. On principle, it would seem that it should not."

Subsequent decisions, some of which are cited below, uniformly hold that in respect to homestead rights accruing subsequent to the Act of February 28, 1889, the sale and abandonment of possession by the exemptioner does not work a forfeiture of...