Hodges v. Birmingham Securities Co.

• Court: Alabama Supreme Court
• Writing for the Court: DOWDELL, C.J.
• Citation: Hodges v. Birmingham Securities Co., 187 Ala. 290, 65 So. 920 (Ala. 1914)
• Decision Date: 14 May 1914
• Docket Number: 418
• Parties: HODGES v. BIRMINGHAM SECURITIES CO.

65 So. 920

187 Ala. 290

HODGES v. BIRMINGHAM SECURITIES CO.

No. 418

Supreme Court of Alabama

May 14, 1914

On Rehearing, July 2, 1914

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by the Birmingham Securities Company against Alice Hodges. From a decree for complainant, respondent appeals. Reversed and remanded.

Mayfield and Sayre, JJ., dissenting.

So far as is shown by the record, the case was submitted for final decree on the bill of complaint, and the decree pro confesso against defendant. No evidence of any description appears to have been taken.

Allen &amp Bell, of Birmingham, for appellant.

A.C. &amp H.R. Howze, of Birmingham, for appellee.

DOWDELL C.J.

This appeal is taken from a final decree upon a submission on the bill and the exhibits thereto, and a decree pro confesso regularly had on the bill.

The rule of chancery practice in this state is well settled that every fact well pleaded in a bill is taken as confessed on a decree pro confesso. There is another rule of law which requires the citation of no authorities to sustain, and that is, when certain facts are established, reasonable conclusions of the existence or the nonexistence of other facts may be deduced therefrom by the court or jury trying the case. The purpose of the bill is to enjoin the respondent, appellant here, from prosecuting her suit in ejectment at law for the recovery of the 20 acres of land described in the bill. The complainant relies upon the doctrine of estoppel in pais on the facts stated in the bill which must be taken as true on the decree pro confesso. The bill avers that complainant is a bona fide purchaser for value without notice. The bill also shows that the respondent, Alice Hodges, upon the facts of her husband, filed her petition in the probate court to have set aside to her a homestead in the lands which her said husband occupied at the time of his death. In her petition she described 60 acres of land, and swore that the 60 acres so described constituted all the land that her husband occupied at the time of his death. The 60 acres was, on her petition, regularly set aside to her as a homestead. The bill further shows that the said deceased husband, Joel B. Hodges, owned, in addition to his said homestead which was set aside to the widow on her proceedings in the probate court, 20 acres of land, the land now in question, which, it is averred, descended to and was taken possession of by the children of said Joel B. Hodges, and was thereafter owned and claimed by them as the heirs at law of said Joel B., and that they continued in possession thereof, with the knowledge and acquiescence of the said Alice, nearly six years after the death of said Joel B., and sold and conveyed the same; that the appellee purchased the same from the parties to whom the heirs at law of the said Joel B. had sold, paying a valuable consideration therefore, namely $1,150, and obtained a deed to the same. The bill further shows that the appellee, when it purchased said 20 acres, caused an abstract of the title to the same to be made, which abstract showed the proceedings in the probate court, and that the said Alice Hodges had had the homestead, as she alleged, of 60 acres, set apart as exempt to her under the law, and for some reason, undisclosed in said proceedings, alleged that said 60 acres was all of the land owned by the decedent at the time of his death. And it is further averred in the bill that the appellee, in making said purchase of said land, relied upon the representations made by the said Alice Hodges in her said application in the probate court, and upon the fact that she had obtained all of her homestead interest in the property and estate of her said husband, and, so relying, appellee purchased said property for a valuable consideration, and paid the same, without any knowledge, actual or constructive, that the said Alice Hodges had any interest whatever in said 20 acres of land. The chancellor, on the foregoing facts shown by the bill, which were admitted and confessed on the decree pro confesso by the respondent, rendered his decree granting the complainant relief.

While it is not necessary, where the land occupied by the deceased husband at the time of his death does not exceed in area and value that which the law allows as a homestead, for the widow to institute proceedings in the probate court to secure her homestead rights, yet the statute authorizes such proceedings, and she may pursue that course if she chooses to do so. As was said in the case of Tartt v. Negus, 127 Ala. 301, 28 So. 713:

"The statute authorizes proceedings in the probate court for setting apart the homestead, and they may be resorted to with advantage for the purpose of establishing the exempt character of the particular property by record evidence."

The respondent voluntarily resorted to the probate court to establish her homestead claim, and doubtless she had her reasons for doing so, and by those proceedings she put herself on record as declaring to the world that she had no claim of homestead in any other land of her deceased...