Davis v. Bates

• Decision Date: 14 March 1940
• Docket Number: 8 Div. 982.
• Citation: 194 So. 647,239 Ala. 214
• Court: Alabama Supreme Court
• Parties: DAVIS ET AL. v. BATES.

194 So. 647

239 Ala. 214

DAVIS ET AL. v. BATES.

8 Div. 982.

Supreme Court of Alabama

March 14, 1940

Appeal from Probate Court, Limestone County; A. M. McConnell, Judge.

Petition for homestead exemption by Mrs. M. A. Bates, contested by Thomas C. Davis and others. From a decree for petitioner contestants appeal.

Affirmed.

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

R. B Patton and Geo. C. Johnson, both of Athens, for appellee.

BROWN Justice.

This appeal is from a final decree of the Probate Court rendered in a proceeding instituted under the provisions of § 7948 of the Code 1923, and rendered in accordance with the provisions of § 7951.

The petition sets forth all the jurisdictional facts, and the proceedings in all things prima facie regular, and the decree is due to be affirmed, unless the facts following, as to which there is no dispute, deprived the court of jurisdiction to entertain the petition at the suit of the petitioner therein.

William Davis, who died in Limestone County, Alabama, in April, 1921 owned and occupied with his wife, M. A. Davis, now Bates, the property in question as a homestead, the lands consisted of seventy-four acres and did not exceed in value $2,000 and was all the land owned by said Davis, and there was no administration on his estate. Mrs. Davis remaining in possession, married a Mr. Bates, and on January 16, 1926, they conveyed the land in suit by warranty deed to Mat B. McLemore, who had the deed recorded and took possession of the land thereunder. The collateral heirs of Davis, appellants here, brought ejectment against McLemore, but were denied a recovery by the Circuit Court of Limestone County, and that judgment was here affirmed. Cox et al. v. McLemore et al., 236 Ala. 559, 183 So. 860.

Thereafter the widow and heirs of McLemore, he having died pending the ejectment suit, reconveyed the property to the appellee, on a recited consideration of $1,500, the price which she received when she conveyed to McLemore. Only $1 of that sum was in fact paid to the widow and heirs of McLemore, who remained in possession.

These facts were presented to the Probate Court on the hearing of their exceptions to the report of the Commissioners setting apart the lands as exempt, alleging in such exceptions the facts recited above.

The appellants insist that the appellee has no such interest in the land as authorizes her to institute the proceedings under the statutes, above cited; that she is not now claiming under her husband as exemptioner, but as the grantee of the widow and heirs of McLemore.

In support of their contention appellants cite Thompson v. Miller, 204 Ala. 502, 85 So. 689; Strickland et al. v. Hinson, 213 Ala. 401, 104 So. 766; Tharp et al. v. Johnson et al., 219 Ala. 537, 122 So. 668; and Leddon et al. v. Strickland et al., 218 Ala. 436, 118 So. 651.

In Thompson v. Miller, and Strickland v. Hinson, supra, the exemptioner had parted with her title and had no interest in the property when the proceedings were instituted in the Probate Court. The controversy in Tharp et al. v. Johnson, supra, was governed by the statutes found in the Code of 1876, and the Act of February 28, 1889, brought forward in the several Codes was not applicable to that controversy. The effect of said act, as repeatedly held, was to prevent waiver of the right of exemption by a sale and abandonment of possession by the exemptioner. Cox et al. v. McLemore et al., supra, and authorities cited therein.

In Leddon et al. v. Strickland et al., supra, the property, at the death of the husband, was not his homestead. It was a part only of his holdings in real...