Lewis v. Lewis

• Decision Date: 31 May 1917
• Docket Number: 6 Div. 147
• Citation: 201 Ala. 112,77 So. 406
• Parties: LEWIS v. LEWIS.
• Court: Alabama Supreme Court

77 So. 406

201 Ala. 112

LEWIS v. LEWIS.

6 Div. 147

Supreme Court of Alabama

May 31, 1917

On Rehearing December 20, 1917

On Rehearing.

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

Suit by Fannie L. Lewis against Mrs. Mollie Barry Lewis. From decree for complainant, respondent appeals. Affirmed.

McClellan and Sayre, JJ., dissenting.

Allen Fisk & Townsend, of Birmingham, for appellant.

Sterling A. Wood and Henry Upson Sims, both of Birmingham, for appellee.

MAYFIELD J.

On consideration of the application for rehearing, the majority of the court are of the opinion that the application should be granted, and the judgment of reversal set aside and one of affirmance entered.

The following may be stated as some of the reasons which impel us to the conclusion now reached:

It is without dispute that the property in question was the homestead of W.F. Sparling; that he resided upon it, with his wife, Janet A. Lewis Sparling, the ward of appellee, for some time, and until about the year 1894 or 1895, when he abandoned his wife, his homestead, and the state, leaving his wife in the possession of the homestead; that there she remained until about the year 1900, when she became insane and was so adjudicated, and committed to the state asylum where ever since (or at least until the filing of this bill), she has remained in confinement as an insane person. Ever since the abandonment of his wife, the husband has remained away from her and from the state, his locus in quo being unknown to his wife or his friends in Alabama until about the time of the filing of this bill or shortly thereafter. After the ascertainment of his whereabouts, and pending this suit, he conveyed or attempted to convey the land in question to appellant. He was afterwards made a party to the suit.

The bill was filed by appellee, as guardian of the insane wife, against appellant individually and as the executrix of her deceased husband, R.S. Lewis, who was a brother of the insane ward, and appellee, the guardian. The bill sought to have a resulting trust declared in the lands, in favor of the ward and against appellant, and enforced, to have an accounting against appellant individually and as executrix, and to have her convey the property to the ward or to appellee guardian. The chancellor granted the relief prayed, and respondent appeals.

The allegations and the facts to show the trust were that after the ward's husband abandoned her, R.S. Lewis lived with his sister in her home, or near by, and, as her agent, took charge of the home to assess it for taxes, etc.; that he did assess it, and in his sister's name, but he allowed it to be sold, and at the tax sale he purchased the property, taking the title in his own name instead of in the name of his sister. Allowing it to be sold for taxes was done, as the brother professed, to defeat any claims through the absconding husband, who was then thought to be dead. He, the brother, even after the tax deed was executed to him and after his sister was adjudged insane, in talking to his other sister, the guardian, and appellee here, spoke of the land as his sister's. When R.S. Lewis died he devised all his lands to his wife, the appellant; and upon the will of her deceased husband the appellant based her sole claim to this land when the bill was filed. Pending suit, however, and after the absconding husband of the insane ward was located, appellant procured his deed to her of the land in question, and thereafter she attempted to set up that deed as a defense to this suit.

On the original hearing, we held that this deed passed a good title to appellant, and that this defense was made out. In this holding we were in error. This deed, under the undisputed facts in this case as we now hold, passed no title, either legal or equitable, because it was not executed in the manner required by our Constitution and statutes as to the alienation of the homestead of the husband; and there is no pretense that the deed of the husband was so executed. Const. § 205; Code, § 4161. The theory upon which, on the former hearing, we held the deed to be valid is well stated by Justice McClellan in the opinion on that hearing, where the authorities are cited in support of the holding. This theory, in short, was that the land, upon being conveyed by the absconding husband, ceased to be impressed with any homestead rights on the part of either the husband or the wife--on the part of the husband, because he had abandoned the homestead and absconded, with no animus revertendi; on the part of the wife, because she had left it and remained away continuously for a term of years, being all the while confined as a non compos mentis in an insane asylum. The basis error in the former holding was, in applying the law of abandonment of homestead, to facts which did not constitute an abandonment, so far as the wife was concerned, nor subject the homestead to alienation by the husband without his complying with the Constitution and with the statutes governing such alienation. We are now dealing with the wife's homestead rights, and not those of the husband. In the very recent case of Winkles v. Powell, 173 Ala. 51, 52, 55 So. 536, 538, it is said:

"It results from these principles that the husband may, without the wife's consent, abandon the homestead, and by so doing deprive it of the privileges and free it from the restraints attached to it by law. It is clear, therefore, that had Powell simply abandoned his home in Marshall county, and acquired a home in Winston county, which he invited his wife to share, her refusal to do so, and her continued occupancy of the former home, would not have preserved the homestead character of such former home, and he could have alienated it without her signature or assent, subject, of course, to her inchoate right of dower. But the record shows that he permanently abandoned both his home and his family; and so far was

he from desiring the further presence of his wife that in less than a year he took another woman and installed her in the new home which he acquired. In accordance with the spirit and purpose of our homestead laws, we are of the opinion that the husband could not thus abandon the homestead occupied by himself and his wife, and, while she continued to occupy it as her home, and was excluded from his presence and his home elsewhere, thereby empower himself to convey it away without her lawfully expressed consent. And the principle of this view has been approved by the courts of many states. 21 Cyc. 597; [ Jerdee v. Furbush, 115 Wis. 277, 91 N.W. 661] 95 Am.St.Rep. 936, note. By section 2537, Code of 1886, brought forward as section 4190, Code 1907, it is provided that when, among other things, the husband absconds or abandons his family, the wife shall be entitled to interpose any and all claims of homestead or other exemption which the husband could have interposed, conditioned on her intention to continue a resident of the state."

The difference between the facts of the Winkles-Powell Case and those of the case in hand is that in the former the wife remained on the homestead, while in this instance she left it. But she did not leave it voluntarily; she was adjudged insane, and removed by force, though in accordance with law; hence this case presents the question: Does such a leaving constitute an abandonment by the wife? We hold that it does not. Actual occupancy, in such cases, is not required to preserve the homestead rights of the wife whose husband has abandoned her and absconded, leaving her without aid or assistance from him in her sad and unfortunate condition. It would be unconscionable to hold that he could, by such inhuman conduct, deprive her of the only source of support which he had left her; and so we find the justice of the case in this instance to be the law of the case. The principle of law and general rule in such cases seems to be that occupancy of the homestead is necessary to the survival of the homestead rights; that the protection of the property as a homestead continues only so long as the occupancy continues. This general rule, like most rules of its kind, however, has its exceptions, limitations, and qualifications; and the case in hand falls within one of these exceptions. Abandonment being a question mainly of intent, no uniform rule can be enunciated as to what facts will constitute the act. This court has said that abandonment includes both the intention and the external acts by which the intent is carried out. Tennessee, etc., Co. v. Taylor, 102 Ala. 224, 14 So. 379. In the opinion in that case the rule was quoted and stated, from the authorities, as follows:

" 'Abandonment includes both the intention to abandon and the external act by which the intention was carried into effect,' and 'as intent is the essence of abandonment, the facts of each particular case are for the jury.' 1 Amer. & Eng.Encyc. of Law, p. 1, notes and authorities; Wyman v. Hurlburt, 12 Ohio, 81; s.c. 40 Am.Dec. 461, note 464."

Hence involuntary or compulsory abandonment of, or absence from, the homestead will not be held to constitute an abandonment or a forfeiture or waiver of the homestead rights. Of such character would be the abandonment charged in the case at bar, and similar cases, where the occupant was adjudicated insane, and removed to and detained in an asylum. Burkhardt v. Walker & Son, 132 Mich. 93, 92 N.W. 778, 102 Am.St.Rep. 392; Sheehy v. Scott, 128 Iowa, 551, 104 N.W. 1139, 4 L.R.A. (N.S.) 368, 111 Am.St.Rep. 184, 5 Ann.Cas. 924; Huffman v. Smyth, 47 Or. 573, 114 Am.St.Rep. 938, 8 Ann.Cas. 681, and notes thereto. From these notes we quote the following, as stating the rule announced by the authorities cited:

"If a wife is compelled through fear of violence

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