Miller v. Thompson

• Decision Date: 12 May 1921
• Docket Number: 7 Div. 110
• Citation: 89 So. 51,205 Ala. 671
• Parties: MILLER et al. v. THOMPSON
• Court: Alabama Supreme Court

89 So. 51

205 Ala. 671

MILLER et al. v. THOMPSON

7 Div. 110

Supreme Court of Alabama

May 12, 1921

Appeal from Circuit Court, Etowah County; O.A. Steel, Judge.

Bill by John Henry Thompson against R.L. Miller, and others, to quiet and remove cloud from title of complainant. From a decree granting relief, respondents appeal. Affirmed.

See also, 204 Ala. 502, 85 So. 689.

Goodhue & Brindley, of Gadsden, for appellants.

Motley & Motley, of Gadsden, for appellee.

GARDNER J.

A branch of this litigation concerning the property here in controversy has previously been before this court ( Thompson v. Miller, 204 Ala. 592, 85 So. 689), but we do not consider that the question there determined has any important bearing upon this appeal.

This bill is by a remainderman to remove cloud and quiet the title to the lands therein described. His right to possession or any action for the recovery thereof is postponed until the termination of the outstanding life estate, and that he may maintain a bill, although out of possession, for a removal of the cloud upon his title as such remainderman is well established by all the authorities in this jurisdiction. Dallas Comp. Co. v. Smith, 190 Ala. 423, 67 So. 289; Winter v. Powell, 180 Ala. 425, 61 So. 96; Lansden v. Bone, 90 Ala. 446, 8 So. 65.

The bill alleges that the respondent Millie Miller, as the widow of James Miller, deceased, was vested with a life estate in and to this homestead, and there is no objection to the bill upon the ground that the averment is but a conclusion of the pleader. The argument seems to be however, that the language of the bill is inconsistent, in that it discloses that respondent Millie Miller has conveyed this homestead by warranty deed to the other respondents to the bill, and that by such alienation to third persons she has abandoned and lost her homestead rights--citing Chavers v. Mayo, 202 Ala. 128, 79 So. 594. In that case, however, the lands involved consisted of a tract of 240 acres, much in excess in area allowed as exempt, and no selection or allotment of any homestead to the widow or minor children, and the court, under these circumstances considered applicable the rule stated in Gilbert v Pinkston, 167 Ala. 490, 52 So. 442, 140 Am.St.Rep. 89, and the other authorities therein cited in regard to the effect of an alienation upon such homestead right. In the instant case a different situation is presented. The decedent left a homestead, less in area than that allowed as exempt; and while the bill does not specifically aver that the value at the time of his death did not exceed in amount that allowed, yet there was no specific demurrer taking this point, and in view of the averment above referred to, that there was vested in the widow a life estate, it should be so accepted that such homestead was left or was subject...