Majors v. Killian

Decision Date06 June 1935
Docket Number7 Div. 298
Citation230 Ala. 531,162 So. 289
PartiesMAJORS et al. v. KILLIAN et al.
CourtAlabama Supreme Court

Appeal from Circuit Court, De Kalb County; A.E. Hawkins, Judge.

Bill to set aside conveyance for fraud by G.S. Killian and Mrs. N.E Horton against M.W. Majors, Lila Majors, and Roy A. Majors. From a decree for complainants, respondents appeal.

Reversed and remanded.

McCord & McCord and E.L. Roberts, all of Gadsden, for appellants.

Chas J. Scott, of Fort Payne, for appellees.

THOMAS Justice.

The submission was upon the motion and merits.

The motion sought to dismiss the appeal because of insufficient bond. The form employed is that for costs of appeal, and is in accordance with statutory requirements. Section 6131 Code. This form has been approved. Dees v. Lindsey Mill Co., 210 Ala. 183, 97 So. 647; Marshall et al. v. Croom et al., 50 Ala. 479. The motion is therefore overruled.

It is established that a voluntary conveyance by a debtor of his property is void as to existing creditors, without regard to the intention of the parties, however free from fraud and irrespective of the circumstances of the grantor, the amount of his indebtedness, the time, value, or extent of the property conveyed, if it be not exempt from execution. McCrory et al. v. Donald, 192 Ala. 312, 68 So. 306; Crisp et al. v. First Nat. Bank of Birmingham, 224 Ala. 72, 74, 139 So. 213; Gains et al. v. Griffin, 225 Ala. 130, 131, 142 So. 513; Birmingham Property Co. et al. v. Jackson Securities & Investment Co., 226 Ala. 612, 613, 148 So. 316.

The grounds of demurrer urged in argument by appellants are that "there is no equity in the bill"; that "for aught appearing the land was and is the homestead of the defendants" (section 7882, Code); and, being less in area and value to such exemption allowed, is not subject to execution or sale for payment of debts, and therefore not subject to the lien of a recorded judgment. Sections 7874-7879, Code.

In considering the several propositions of the appellants, we make observation that there are established rules as to homestead exemptions maintained in this jurisdiction; as that the right of homestead is determined by the situation at the time the lien should attach, if it does attach (Franklin v. Comer, 170 Ala. 229, 54 So. 430; Murphy v. Hunt, Miller & Co., 75 Ala. 438); that the lien only attaches to property of the debtor that is subject to levy and sale under execution (section 7875, Code; Brock Candy Co. v. Elson, 211 Ala. 244, 100 So. 94); that when the amount and value of the homestead are not in excess of the allowance of the law (Constitution, § 205; sections 7882, 7890, Code), the law effects the claim as to conveyance by the owner ( Stephen-Putney Shoe Co. v. White et al., 172 Ala. 89, 55 So. 503, Ann.Cas.1913C, 1278; Kibbe v. Scholes et al., 219 Ala. 571, 123 So. 61; Alley v. Daniel, 75 Ala. 402; Jarrell, Ex'r, v. Payne, 75 Ala. 577; J.W. Nance et al. v. W.H. Nance et al., 84 Ala. 375, 4 So. 699, 5 Am.St.Rep. 378; Chandler v. Chandler, 87 Ala. 300, 6 So. 153; Kennedy v. First National Bank of Tuscaloosa, 107 Ala. 170, 18 So. 396, 36 L.R.A. 308); that the right of homestead is absolute and unqualified, and can be defeated only by waiver or relinquishment or conveyance (Kibbe v. Scholes et al., supra); that creditors have no claim upon or interest in such homestead (not in excess of area and value as allowed by law), and therefore suffer no injury by its alienation or disposition by the owner, since such property is not within the meaning of the statute providing for levy and sale. Brock Candy Co. v. Elson, supra; Steiner Bros. v. Berney et al., 130 Ala. 289, 30 So. 570; Fuller v. Whitlock, 99 Ala. 411, 13 So. 80; Hodges v. Winston, 95 Ala. 514, 11 So. 200, 36 Am.St.Rep. 241; Fellows v. Lewis, 65 Ala. 343, 39 Am.Rep. 1; Stephen-Putney Shoe Co. v. White et al., supra; Pollak et al. v. McNeil et al., 100 Ala. 203, 13 So. 937.

It follows that a conveyance of a homestead of the value and area (or less) allowed by law, if made without consideration, or with the intent to defraud creditors, is valid. Brock Candy Co. v. Elson, 211 Ala. 244, 100 So. 94; Boutwell et al. v. Spurlin Mercantile Co., 203 Ala. 482, 83 So. 481; Warren v. Jones, 219 Ala. 213, 121 So. 519; First National Bank of Talladega v. Browne, 128 Ala. 557, 29 So. 552, 86 Am.St.Rep. 156; Stephen-Putney Shoe Co. v. White et al., 172 Ala. 89, 93, 55 So. 503, Ann.Cas.1913C, 1278; Fuller v. Whitlock, supra; Pollak et al. v. McNeil et al., supra.

It has been held that homestead rights may be waived, if not asserted before sale of the property, when that property is such that it is subject to execution sale. Clark v. Spencer, 75 Ala. 49; Kennedy v. First National Bank of Tuscaloosa, 107 Ala. 170, 18 So. 396, 36 L.R.A. 308; Autauga Banking & Trust Co. v. Chambliss et al., 200 Ala. 87, 75 So. 463; Lewis v. Lewis, 201 Ala. 112, 77 So. 406; Cross et al. v. Bank of Ensley, 203 Ala. 561, 84 So. 267.

Cases of alienation of a homestead by the husband without the signature of the wife were the subject of discussion in DeGraffenried v. Clark, 75 Ala. 425, and Metropolitan Life Ins. Co. v. Estes, 228 Ala. 582, 155 So. 79.

Adverting to cases wherein attempt was made at sale under execution of homesteads of less area and value than allowed by law, we cite Stephen-Putney Shoe Co. v. White et al., 172 Ala. 89, 93, 97, 55 So. 503, Ann.Cas.1913C, 1278, as an apt authority. There the judgment was recorded on November 5, 1908, and placed in the hands of the sheriff on November 9, 1908, for execution, which he levied on January 6, 1909. Judicial sale was had on March 1, 1909, and the plaintiff became the purchaser and received the sheriff's deed. Theretofore, on December 7, 1908, the defendant in judgment, while in possession of the land as his homestead at the time judgment was recorded and execution sale had, executed and delivered a deed to White, the appellee; and it appeared that it was all the land he had, and that it was less in area and value than the homestead exemptions allowed by law of that date. It further appeared that the grantor had filed no declaration of claim of occupancy and ownership before or after the date of the making of deed to White. This court declared that no actual or formal claim and selection of that homestead, as is provided for in out statutes, was necessary to protect it from execution sale and from the lien of the recorded judgment, saying:

"*** the effect of the constitutional and statutory provisions above referred to was, ex proprio vigore, to exempt the homestead (if such there was as a distinct entity) from levy and sale under judicial process, and to place it as much beyond the influence of an execution as if it were the property of a stranger. Execution in the hands of the sheriff, in such cases, fastens no lien upon the property so held, either on the life estate or on the remainder. The exemptioner in such case could sell the land or property so held, and invest a good title in the purchaser, to the same extent and with the same limitations on his power of disposition, as would be the case if his debt was not in execution, or was not reduced to judgment. ***
"And where the whole tract owned and occupied by the debtor does not exceed the area mentioned in the Constitution, and is admittedly within the prescribed valuation, the law, in the absence of any proof, must presume the acceptance by the debtor of the benefit conferred by the Constitution, to the full amount of the exemption; this being the ground upon which the acceptance of a grant is presumed--because of benefit to the grantee. The Constitution and statutes contemplate a selection only when it is necessary to bring the homestead within the limitations as to area or value, and as a method of separating it from a tract of larger area or of greater value, and to thus define its boundaries. Beecher v. Baldy, 7 Mich. 488; Thomas v. Dodge, 8 Mich. 51." Stephen-Putney Shoe Co. v. White et al., 172 Ala. 93, 97, 55 So. 503, 505, Ann.Cas.1913C, 1278.

The statute there construed--section 4160, Code 1907, and later section 7882, Code 1923--contained the words: "The homestead of every resident of this state *** not exceeding in value two thousand dollars, and in area one hundred and sixty acres, shall be, to the extent of any interest he may have therein *** exempt from levy and sale under execution or other process for the collection of debts during his life and occupancy." (Italics supplied.)

To like effect was Brock Candy Co. v. Elson, 211 Ala. 244, 100 So. 94, 95; Franklin v. Comer, 170 Ala. 229, 54 So. 430; Steiner Bros. v. Berney et al., 130 Ala. 289, 30 So. 570; Pollak et al. v. McNeil et al., 100 Ala. 203, 13 So. 937.

We advert to our later cases of an attempt to subject a homestead of the value and area allowed by law to the lien of a recorded judgment.

In Brock Candy Co. v. Elson, supra, the holding was that the judgment lien "is a continuing lien, and attaches to any property subject to execution coming to the hands of the defendant within a period of 10 years from the date of the judgment"; that "such lien, however, never attaches to property exempt from and not subject to execution on such judgment"; that "the judgment lien statutes work...

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