Parks v. Barnett

• Decision Date: 10 August 1894
• Citation: 104 Ala. 438,16 So. 136
• Parties: PARKS v. BARNETT ET AL.
• Court: Alabama Supreme Court

16 So. 136

104 Ala. 438

PARKS v. BARNETT ET AL.

Supreme Court of Alabama

August 10, 1894

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Ejectment by M. D. L. Parks against W. R. Barnett. On motion Belle D Coltart was made a party, and allowed to defend the suit, as landlord of said Barnett. There was a judgment for defendants, and plaintiff appeals. Reversed.

This was a statutory action of ejectment, brought by the appellant, M. D. L. Parks, against the appellee W. R Barnett, on January 16, 1893; and sought to recover the possession of a certain lot described in the complaint situated in the city of Huntsville. On motion, Belle D Coltart was made a party and allowed to defend the suit, as landlord of said Barnett. She pleaded the general issue, and the statute of limitations of 10 years. The plaintiff based his right to the possession of the lot sued for on a conveyance executed by Teney Hart, who was the widow of William Hart, deceased. This conveyance was a warranty deed dated April 9, 1887, and conveyed to the complainant the fee-simple title to the property. William Hart, the husband of the said Teney Hart, died a few years before the execution of the conveyance to the said Parks, and left surviving him no heirs at law or next of kin, except the said Teney Hart, his wife. The said William Hart was in possession of the land, claiming it as his homestead, up to the time of his death; and thereafter the said Teney Hart was in possession up to the time of her death, which occurred in January, 1893, and immediately after the said Teney Hart's death, the appellee was put in possession as tenant for the defendant Coltart. The defendant based her right to the property sued for upon a deed conveying said lot, executed by the said William and Teney Hart to the said Belle D. Coltart, on October 13, 1879. Attached to this deed was a certificate of the justice of the peace of the acknowledgment of said William and Teney Hart to the execution of said deed; but there was no certificate certifying that the said Teney Hart had made a separate acknowledgment of the execution of the deed conveying her homestead, separate and apart from her husband, as required by statute. Some time after the death of said William Hart, Teney Hart acknowledged before a justice of the peace that she had voluntarily executed the deed referred to. The plaintiff objected to the introduction in evidence of the deed by the defendant Coltart, to which was also attached the certificate last referred to. This objection was overruled, and the plaintiff duly excepted.

Humes, Sheffey & Speake, for appellant.

Lawrence Cooper, for appellee.

HARALSON J.

1. In the absence of children or next of kin, on the death of William Hart, intestate, leaving a wife, his whole estate went, under the statute, to her. Code, § 1915, subd. 5.

2. The evidence is without conflict, that the lot sued for, at the time of its attempted conveyance by said Hart and wife to the defendant, Coltart, was their homestead, in their actual occupancy and possession, as such, and had been for many years before. Their deed was without the acknowledgment of the wife, as required by section 2508 of the Code, to make a valid conveyance by the husband of the homestead. By the repeated decisions of this court, as well as by the terms of the statute itself, such a conveyance is void. It is said of such a deed that it is a nullity to all intents and purposes, and confers no rights present or prospective, is totally insufficient as a muniment of title to support an action of ejectment, and is incapable of passing any estate or interest whatever in the homestead. McGuire v. Van Pelt, 55 Ala. 344; Miller v. Marx, Id. 338; Balkum v. Wood, 58 Ala. 642; Halso v. Seawright, 65 Ala. 431; Slaughter v. McBride, 69 Ala. 510; Hood v. Powell, 73 Ala. 171; Alford v. Lehman, 76 Ala. 526; Strauss v. Harrison, 79 Ala. 324; Smith v. Pearce, 85 Ala. 266, 4 So. 616; Cox v. Holcomb, 87 Ala. 589, 6 So. 309. We have also held, more than once, that such a conveyance acknowledged by the wife after the death of the husband, with certificate thereof in proper form, does not defeat or affect the title of his heirs. Richardson v. Iron Co., 90 Ala. 266, 8 So. 7; Id., 94 Ala. 629, 10 So. 144; Hodges v. Winston, 95 Ala. 514, 11 So. 200.

3. So far, then, as this deed from said Hart to defendant is concerned, the title to the lot remained in William Hart, as though it had never been signed by him and his wife. On his death, intestate and without next of kin, his wife had the right to the property and the capacity to convey the same to the plaintiff, as she did by her deed of 9th of April, 1887 unaffected by her previous inoperative, void deed to defendant. Before that time, being the owners of the lot, with title in themselves, and in the actual occupancy, it...