Drake v. Drake, 6 Div. 750

• Decision Date: 14 April 1955
• Docket Number: 6 Div. 750
• Citation: Drake v. Drake, 262 Ala. 609, 80 So.2d 268 (Ala. 1955)
• Parties: Thelma J. DRAKE v. Louis V. DRAKE.
• Court: Alabama Supreme Court

Page 268

80 So.2d 268

262 Ala. 609

Thelma J. DRAKE v. Louis V. DRAKE.

6 Div. 750.

Supreme Court of Alabama.

April 14, 1955.

Rehearing Denied May 26, 1955.

Victor H. Smith, Kelvie Applebaum and Chas. M. Hewitt, Birmingham, for appellant.

Chas. W. Greer, Birmingham, for appellee.

MERRILL, Justice.

Louis V. Drake and his wife, Thelma, each own an undivided one-half interest in a house and lot in Birmingham which admittedly is worth between $9,000 and $10,000. Louis filed the bill in this cause to sell the property for division. Thelma filed a plea showing that they had been married for 20 years, that the deed was made to them jointly; that she had continuously occupied the property as her homestead; that subsequent to the purchase of the property she had been granted a divorce a menso et thoro from complainant but no divorce a vinculo matrimonii had ever been rendered against either of them; that until the rendition of the decree both parties had occupied the premises as their homestead; and that she protested and objected to any sale for division.

The plea was declared to be insufficient, and respondent filed her answer and cross bill setting up in more detail the matters shown in the original plea, alleging that she was due an accounting for the cost of improvements to the property for which she had paid, and she prayed that the court would grant an accounting, hold that the property could not be sold for division because it was her homestead, or if it could be sold, that the court decree that 'the sum of $2,000 from the share or interest of cross respondent in the proceeds of sale be set apart and allotted to cross complainant for homestead.'

The cause was heard ore tenus by the court and the decree provided: (1) the real estate was owned one-half by complainant, subject to the homestead interest of the complainant and the respondent of the value of $2,000, and one-half by the respondent, and that the property could not be equitably divided without a sale for division; (2) directed the Register to sell the property after legal notice; (3) authorized the Register to obtain an abstract; (4) directed report of the sale; (5) provided for the fixing of an attorney's fee for complainant's solicitor for his services; (6) directed a reference to the Register to state an account between the parties and report his findings, and (7) the Court reserved the cause for further orders, including a determination as to the proper disposition of the $2,000 in lieu of homestead out of the half interest of the complainant. Thelma, the wife, has appealed from this decree and Louis, the appellee, has cross assigned errors.

Appellant has twelve assignments of error which will be convered in this opinion and appellee has six cross assignments of error which make the points that the real estate which will be covered in this opinion and that the court should not have reserved 'determination as to the proper disposition of said $2,000.00 in lieu of homestead out of the one-half interest of said complainant.'

We are confronted first with the effect of the divorce a mensa et thoro. A divorce from the bonds of matrimony bars the wife of her dower and of any distributive share in the personal estate of her husband, Code of 1940, Title 34, § 33, but a decree of divorce from bed and board does not remove the vinculum of marriage. Such a divorce is only a legal separation, the marriage continuing in regard to everything not necessarily withdrawn from its operation by the decree, McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318. This court said in Adair v. Adair, 258 Ala. 293, 62 So.2d 437, 443:

'In fact, the legal effect of the wife's selection and pursuance of the remedy for limited divorce is to save for herself the right of her dower interest in the husband's estate if he predeceases her and the right to share and participate in the division of his personal estate and to have a homestead or an allowance in lieu thereof of the value of $6,000. Code of 1940, Tit. 7, § 662, Pocket Part; McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318; Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244; Code of 1940, Tit. 7, § 661, Pocket Part.'

The husband contends that since the decree of divorce a mensa et thoro was silent as to homestead or any other property interest, the property ceased to be the homestead at the time he moved away from the premises when that decree was rendered on September 12, 1951. The wife contends that § 205 of the Constitution protects her in that no alienation of the homestead by the husband is valid without her assent, and that Louis, her husband, compelled the separation by his cruel treatment, that being the basis of the divorce from bed and board; and to permit him to sell the homestead for division would mean that a court of equity was assisting him to do indirectly, through a sale for division, what he could not do under the constitution by a direct sale or conveyance. These questions were presented to this court in the cases of Winkles v. Powell, 173 Ala. 46, 55 So. 536; Lewis v. Lewis, 201 Ala. 112, 77 So. 406, 408. In those cases the court held that where the husband abandoned the wife and the home, the wife continued to have homestead rights so long as she remained a bona fide citizen of this state. In each of these cases Justice McClellan wrote a vigorous dissent, which states the position of the appellee here. In Lewis v. Lewis, supra, the court said:

'There is another general rule, to the effect that the abandonment of the homestead by the husband as the head of the family, and the acquisition of another residence or homestead, terminates the right of the wife, as well as that of the husband, therein as to a homestead. An exception to this rule, however, is that if the abandonment be not in good faith, and to acquire a residence, if not a homestead, for the wife and family, but is in fact a desertion of them by the husband and father, then it does not impair or forfeit the rights of the wife. He does not, in such case, act for them, but against them. He is not allowed thus to defeat the object and purpose of the homestead laws, such purpose and object being the protection of the family. The homestead laws, as a system, including even those exempting the homestead to the husband, are not for the sole benefit of the husband, but are for the benefit of the wife and children as well, even during the husband's life. Witherington v. Mason, 86 Ala. 345, 5 So. 679, 11 Am.St.Rep. 41; Kennedy v. First Nat. Bank of Tuscaloosa, 107 Ala. 170, 18 So. 396, 36 L.R.A. 308.

'This court has uniformly held that the homestead laws are to be liberally construed, to the end of advancing their beneficial objects, by giving effect to the manifest purpose of the Constitution makers and of the Legislature in conferring the rights. * * *'

True, Louis Drake did not abandon his wife and homestead in exactly the same manner as did the husbands in the cases cited, but the divorce a mensa et thoro was granted because of his cruel treatment toward his wife. We cannot perceive any reason why a husband who compels a separation by his misconduct, as here, should be in a more favored position than a husband who was guilty of abandonment. Thus we must hold that the property here involved is subject to the homestead rights of the wife.

But the wife contends that the property cannot be sold without her consent and that her plea that it was the homestead should have been held sufficient as a complete defense. She relies on Mitchell v. Mitchell, 101 Ala. 183, 13 So. 147, 148, where the husband and wife each owned an undivided one-half interest in the homestead and the husband filed a petition to sell for division and the wife objected. The court said:

'The constitution of the state expressly prohibits the 'alienation of the homestead by the owner thereof, if a married man, without the voluntary signature and assent of the wife to the same,' and the only manner in which her voluntary signature and assent may be effectuated to such alienation is regulated by statute. It is true that a sale of the homestead for distribution under a decree of the court would not be, strictly speaking, an alienation by the husband; but a decree to that effect, upon his application, enables him to defeat the constitutional provision made for the protection of the wife, and indirectly accomplish an unlawful end. * * * The spirit of our constitution, and the statute in regard to the homestead, enacted for the benefit of the wife, positively prohibits its alienation by the husband, except in the manner prescribed, and he can no more do this by resorting to the courts than by direct deed. There is evidence tending to show that, although living in the same town, they are living separate and apart. This can make no difference, so long as the relation of husband and wife exists.'

The original record in the Mitchell case shows the land involved was six acres not worth over $1,000.00, that being all the real estate the husband and wife owned.

In Miles v. Miles, 207 Ala. 57, 91 So. 886, 888, the court, speaking through Chief Justice Anderson, said:

'It is well established by the decisions of this court that one joint owner of land may file a bill in equity for a sale of same for division when the same cannot be fairly partitioned in kind between the respective owners, notwithstanding the owners may be husband and wife. Donegan v. Donegan, 103 Ala. 488, 15 So. 823, 49 Am.St.Rep. 53. Such a bill, however, cannot be maintained by the husband against the wife, over her objection, when the land sought to be sold constitutes the homestead. Mitchell v. Mitchell, 101 Ala. 183, 13 So....