Gunn v. Hardy

• Decision Date: 27 November 1901
• Citation: 130 Ala. 642,31 So. 443
• Parties: GUNN v. HARDY ET AL.
• Court: Alabama Supreme Court

31 So. 443

130 Ala. 642

GUNN v. HARDY ET AL.

Supreme Court of Alabama

November 27, 1901

Appeal from circuit court, Shelby county; J. B. Graham, Special Judge.

Action by J. H. Gunn against J. D. Hardy and others. Judgment for defendants. Plaintiff appeals. Reversed.

Phares Coleman and Browne & Leeper, for appellant.

Smith &amp Smith, for appellees.

TYSON J.

Plaintiff claims title to the lot in controversy under a sheriff's deed made to him as purchaser at an execution sale, had on December 18, 1893. This execution was against J. D. Hardy and was issued out of the chancery court to enforce the collection of $344 recovered by the plaintiff of him for the use and occupation of a certain lot, the title to which and the right of possession was involved in that suit, and the costs thereof amounting to $226.55. The suit in the chancery court was commenced in 1883, and during its pendency, in 1886, Hardy, being the owner of and occupying the lot in controversy as his homestead, executed to his wife the deed under which she claims title to it. This deed is attacked for being fraudulent and void as against the plaintiff, who it is contended was a creditor at the date of its execution against whose demand there are no exemptions, under the constitution and statutes of this state. It cannot be doubted that if the damages recovered in the chancery court, and for which the execution was issued to enforce, were for a tort that Hardy was not entitled to claim the lot involved in this suit as exempt from levy and sale under the execution. It is only against debts or demands arising out of contract that a homestead exemption is allowed the debtor. Section 2, art. 10, Const.; section 2033, Code; Meredith v. Holmes, 68 Ala. 190; Williams v. Bowden, 69 Ala. 433; McLaren v. Anderson, 81 Ala. 106, 8 So. 188; Vincent v. State, 74 Ala. 274; Wright v. Jones, 103 Ala. 539, 15 So. 852.

For the purpose of determining the nature and character of the demand, whether in tort or contract, when not disclosed in the decree, it is competent to look at all the pleadings, orders, etc., in the cause. Northern v. Hanners, 121 Ala. 590, 25 So. 817, 77 Am. St. Rep. 74, and authorities therein cited. The record in that cause discloses that Hardy's liability, enforced by the execution, resulting in the purchase by the plaintiff of the lot in controversy, arose, not out of any contract between him and the plaintiff, but out of his tortious possession of the lot involved in that suit. No contractual relations whatever existed between them with reference to the title to that lot or the right to the possession of it by Hardy. He went into the possession of it, not by the consent of Gunn, express or implied. It was only after Hardy recovered it in an action of ejectment, and a writ of possession issued against Gunn, that he surrendered the possession of it, and Hardy took possession. It was for the unlawful use and occupancy by Hardy that Gunn recovered the damages in the chancery case; and, as against that recovery, the lot in dispute was not exempt to Hardy as a homestead; and as against that demand, if the plaintiff is a creditor, within the meaning of the statute of frauds, and entitled to its protection against fraudulent conveyances, the deed to Mrs. Hardy is void.

Was the plaintiff a creditor, at the date of the deed to Mrs. Hardy within the meaning of section 2156 of the Code? As the decree adjudging Hardy liable for damages is only evidence of the existence of his liability at the date of its rendition, and as Mrs. Hardy's deed antedates the rendition of the decree, we are authorized to look to the record beyond the decree for the purpose of ascertaining, not only the cause of action, but when the right or claim arose upon which the decree is based. Yeend v. Weeks, 104 Ala. 340, 16 So. 165, 53 Am. St. Rep. 50. Consulting the record, we find that, at the date of the deed to Mrs. Hardy, Hardy was liable to the complainant in that suit, plaintiff in this one, for use and occupation for nearly three years. In other words, had the decree been rendered just prior...