McGhee v. Wilson

• Decision Date: 23 June 1896
• Citation: 111 Ala. 615,20 So. 619
• Parties: MCGHEE ET AL. v. WILSON.
• Court: Alabama Supreme Court

20 So. 619

111 Ala. 615

MCGHEE ET AL. v. WILSON.

Supreme Court of Alabama

June 23, 1896

Appeal from city court of Gadsden, Etowah county; John H. Disque Judge.

Statutory action of ejectment by A. J. Wilson against C. M. McGhee Henry Fink, and Samuel Spencer, as receivers of the East Tennessee, Virginia & Georgia Railroad Company, to recover a strip of land used by the railroad company as a right of way. Judgment for plaintiff. Defendants appeal. Affirmed.

The defendant claimed title to the land sued for under a conveyance which was executed by A. J. wilson on april 18 1889, to the rome & Decatur Railroad Company, in which the grantor did "give, grant, and convey unto the said R. &amp D. R. R. Co., their successors and assigns, a quitclaim title to a strip of land along such line as may be adopted by the said company, of sufficient width through said lot of land, the premises afore described, not exceeding fifty feet in width, conveniently to build said railroad, as well as all side tracks and turnouts, and necessary and sufficient for all purposes of keeping up and repairing the same, not to exceed twenty-five feet from the center of the main line to each side, making said strip not to exceed fifty feet full width, together with all the rights and appurtenances to said strip of land belonging or appertaining, and also give and grant to said company the privilege and right to cut down along the line of said road, through the lands aforesaid, all trees which by falling might incumber the track thereof. And A. J. Wilson, his heirs and assigns, do hereby quitclaim the right and title to said strip of land unto the said Rome & Decatur Railroad Co. against the claim of himself whatsoever." The defendants regularly connected themselves with this deed, and showed possession in themselves and those from whom they deraign title since the execution of said deed. The evidence for the plaintiff tended to show that at the time of executing the deed he owned the lands through which he granted the right of way, and occupied said land as a homestead, together with his wife; that there were 120 acres in the tract; and that his wife did not join with him in the execution of said deed.

Denson & Burnett, for appellants.

Dartch & Martin, for appellee.

COLEMAN J.

The appellee, Wilson, instituted the statutory action of ejectment to recover a small strip of land. The material question argued by appellants is whether a right of way granted and conveyed by the husband, by a proper instrument duly executed by him, but in which the wife did not join over the homestead, is valid and operative as against him. This question has been answered in the affirmative by the courts in Iowa and Texas. Railroad Co. v. Swinney, 38 Iowa, 182; Railroad Co. v. McWilliams (Iowa) 32 N.W. 315; Railway Co. v. Titterington, 84 Tex. 218, 19 S.W. 472; Randall v. Railway Co., 63 Tex. 586. In Lewis on Eminent Domain (section 589) the text is that "the husband may make a valid grant of a right of way through lands belonging to him, and occupied as a homestead." The above cases from Iowa and Texas are cited in support of the text. In Smyth on Homestead and Exemptions the author uses the following language in section 303: "The power of the husband to grant right of way over the homestead without the wife's consent seems to be established by a late case in Iowa. The proposition, as heretofore generally understood and conceded, has been that the homestead should not only be protected from forced sale upon legal process, but that neither spouse could legally convey or incumber it; but it would seem that an easement is not to be regarded as affecting the title to the land, and that, therefore, the husband might grant a way over the homestead, so long as thereby he does not defeat the occupancy of it as such, upon the same principle that a husband, having the control of the income from the homestead, might lease such parts as were not in actual use by the family, or might farm out a part of it on shares. That he could alone grant an estate in it, even of the nature of an easement, which should be a permanent one, and uncontrollable by the spouses, appears to be antagonistic to the general intentions of the framers of the constitutions and laws as to homesteads, but the latest ruling upon the point favors the right of the husband so to do." The author cites the case from 38 Iowa, supra. In the case of Trickey v. Schlader, 52 Ill. 78, the facts are not given. We notice the following statement in the opinion: "As this road was only an easement, and did not dispose of the fee, the question of a homestead right in the land by the surviving widow cannot arise." We have no criticism to make of these decisions, or the law as declared by the text writers we have quoted. The decisions may accord with the law, and its policy, of those states. They do not accord with ours. Section 2507 of the Code of 1886 reads as follows: "The homestead of every resident of this state, with the improvements and appurtenances, not exceeding in value two thousand dollars, and in area one hundred and...