Foy v. Wellborn

• Citation: 112 Ala. 160,20 So. 604
• Parties: FOY ET AL. v. WELLBORN ET AL.
• Decision Date: 16 June 1896
• Court: Supreme Court of Alabama

20 So. 604

112 Ala. 160

FOY ET AL. v. WELLBORN ET AL.

Supreme Court of Alabama

June 16, 1896

Appeal from circuit court, Barbour county; J.M. Carmichael, Judge.

Ejectment brought by C. C. Wellborn and others against John P. Foy administrator of the estate of Mrs. Wellborn, and others. There was judgment for plaintiffs, and defendants appeal. Affirmed.

G. L Comer, for appellants.

A. H Merrill, for appellees.

BRICKELL C.J.

This was a statutory real action, in the nature of ejectment instituted by the appellees, the heirs at law of Lycurgus Wellborn, to recover the possession of a half of a lot situate in the city of Eufaula. By consent, the defendants (not pleading the general issue of not guilty, which would have included all defenses, not matter puis darrein continuance) interposed three special pleas,-the statute of limitations of 20 years; the statute of limitations of 10 years; adverse possession of 10 years. The facts, as shown by the record, are that the ancestor of the plaintiffs died in March, 1872, in possession of the land in controversy, occupying it as a homestead, and his widow succeeded to the possession. There was no administration on his estate, and no assignment of dower to the widow. Soon thereafter the widow removed from the land, renting or leasing it; and she continued to rent or lease it until her death, in 1892. The ancestor died, not leaving children; and the plaintiffs, the children of a deceased brother, were his only heirs at law. In 1877 the widow married Junius Jordan, whom she survived. In 1875 she obtained a tax deed for the land, which was immediately recorded, in which the premises were described as "one house and lot in the city of Eufaula." During all her possession the widow claimed the premises as her own, but the evidence tended to show that the plaintiff's had no notice or knowledge that she claimed possession otherwise then as widow. The value of the premises at the death of the ancestor was variously estimated by the witnesses at from $500 to $900. After the death of the widow her administrator entered into possession, and rented the lands to his co-defendant. The court instructed the jury that: "If the jury believe the evidence, then the statute of limitations has no application in this case, and cannot be set up by the defendants." Further, that: "If the jury believe from the evidence that the value of the half interest in said lot of land owned by said Lycurgus Wellborn at the time of his death was more than five hundred dollars, and that plaintiffs are the only heirs of said Wellborn, then they are entitled to recover in this suit." The defendants requested the following charges, which were refused: (1) "If the jury believe the evidence in this case, they must find a verdict for the defendants." (2) "If the jury are reasonably satisfied from the evidence that in March, 1872, when Mr. Wellborn died, his widow, the defendants' intestate, was left in possession of the land sued for, upon which she and her husband resided, and that she occupied and held said land for more than twenty years, claiming it as her property, then your verdict will be for the defendants." The charges given and refused form the matter of the assignment of errors.

1. The right of a widow and minor children to an exemption of a homestead is governed by the law in force at the time of the death of the husband and father. Taylor v. Taylor, 53 Ala. 135; Rottenberry v. Pipes, Id. 447; Bell v. Hall, 76 Ala. 546. The statute in force, conferring the exemption, at the death of the ancestor, was the act of February 8, 1872 (Pamph. Acts 1871-72, p. 91), which limited the value of the homestead to a sum not exceeding $500. In Ogbourne v. Ogbourne's Adm'r, 60 Ala. 616, this statute was construed as operating a repeal of all former statutes conferring exemptions on a widow and minor children, or either of them, and, while in existence, constituting the only law having relation to the subject. If, as is hypothesized in the second instruction given the jury, the value of the premises at the death of the ancestor exceeded $500, the widow could not have asserted any just claim to them, as exempt to her from administration. Nor is there any evidence that during her possession she ever claimed the premises as exempt, nor any fact which would authorize a reference of the possession to such claim.

2. The statute confers on a widow the right to retain, free from the payment of rent, possession of the dwelling house where her husband most usually resided next before his death, until her dower is assigned her. Code, § 1900. It is to this statutory right that the possession of the widow-a mere continuance of the possession of the deceased husband-must be referred; and, however long the possession may have been continued, it was without the elements of constituents of a possession hostile and adverse to the heirs of the husband. Sherwood v. Baker (Mo. Sup.) 24 Am. St. Rep. 399, 16 S.W. 938, and authorities cited; ...