Marks v. Wilson

• Decision Date: 27 May 1897
• Parties: MARKS ET AL. v. WILSON.
• Court: Alabama Supreme Court

22 So. 134

115 Ala. 561

MARKS ET AL. v. WILSON.

Supreme Court of Alabama

May 27, 1897

Appeal from circuit court, Choctaw county; John C. Anderson, Judge.

Statutory action of ejectment by Marks, Rothenburg & Co. against W. J Wilson. Verdict and judgment for defendant, and plaintiffs appeal. Affirmed.

The defendant pleaded the general issue, and by a second plea that the land sued for is "now and was at the time of the execution of the mortgage, under which plaintiffs claim title, the homestead of the defendant, and that said land was occupied by defendant as a homestead at that time, and that there is not upon, nor attached to said mortgage a certificate showing the wife's voluntary signature and assent to said mortgage in the form prescribed by law for the alienation of the homestead by a married man and that the defendant is now and was at the time of the execution of said mortgage, a married man." The plaintiffs joined issue upon the first plea, and to the second plea filed two replications, in which they averred that the mortgage under which the plaintiffs claim title to the lands sued for included the whole of the defendant's tract of land amounting to 280 acres; "that the said mortgage on the said whole tract was validly executed as to the defendant's signature, and has been legally foreclosed and also that the plaintiffs purchased the whole tract at said foreclosure sale; and also further that no homestead had been selected and set apart by the defendant out of said whole tract at the time said mortgage was executed; and further that said mortgage was unpaid." To these replications the defendant demurred upon the following grounds: "(1) Because said replications raise, or attempt to raise, an immaterial issue in this case in this that the plea to which said replications are made show defendant selects lands sued for as his homestead, and this is a sufficient selection to enable him to make the defense set up in this case. (2) Because said replications attempt to raise an immaterial issue in that they allege that it was necessary for defendant to have made the selection of the lands sued for as a homestead at the execution of the mortgage or at the time of the sale under it, and defendant says that the selection as shown by said plea is sufficient." These demurrers were sustained, and upon the trial of the cause there were verdict and judgment for the defendant. The plaintiffs appeal, and the rulings upon the demurrer to the plaintiffs' replications constitute the only assignments of error, and the facts pertaining to this ruling are the only facts set out in the abstract.

Edward W. Brock, for appellants.

Holloway & Holloway, for appellee.

HARALSON J.

The constitution and statutes of this state secure not only the homestead exemption of 160 acres to any resident of the state, but the right of its selection to the owner thereof. Const. art. 10, § 2; Code, §§ 2508, 2515. A purchaser from the husband is required to take notice as to what part of the land the debtor may choose to select. He buys at his own risk as to that matter. Jaffrey v. McGough, 88 Ala. 650 7 So. 333. Both by the constitution and by statute, it is provided that no mortgage or other alienation by a married...