People's Bank of Red Level v. Barrow & Wiggins

• Decision Date: 09 November 1922
• Docket Number: 4 Div. 11.
• Citation: People's Bank of Red Level v. Barrow & Wiggins, 208 Ala. 433, 94 So. 600 (Ala. 1922)
• Parties: PEOPLE'S BANK OF RED LEVEL v. BARROW & WIGGINS.
• Court: Alabama Supreme Court

94 So. 600

208 Ala. 433

PEOPLE'S BANK OF RED LEVEL v. BARROW & WIGGINS.

4 Div. 11.

Supreme Court of Alabama

November 9, 1922

Appeal from Circuit Court, Covington County; Arthur B. Foster Judge.

Action by Barrow & Wiggins against W. F. Sowell and W. E. Sowell the People's Bank of Red Level, garnishee. From a judgment on contest of its answer, the garnishee appeals. Transferred from Court of Appeals under section 6, p. 449 Acts 1911. Reversed and remanded.

McClellan J., and Anderson, C.J., dissenting.

Thigpen, Murphy & Jones, of Andalusia, for appellant.

Powell & Reid, of Andalusia, for appellee.

MILLER J.

Barrow and Wiggins brought suit against W. E. Sowell and W. F. Sowell on a promissory note given by them, waiving exemptions as to personal property. There was a judgment by default, damages assessed at $348, and judgment was rendered against the defendants therefor, with waiver of exemptions as to personal property.

While that suit was pending and before judgment was rendered, the plaintiffs in aid thereof obtained a writ of garnishment against the People's Bank of Red Level for it to answer whether it was indebted, etc., to the defendant W. E. Sowell. The garnishee, the bank, answered under oath that it was not indebted to the defendant W. E. Sowell. This answer was contested by the plaintiffs, and thereupon an issue was made up under the direction of the court, in which the plaintiffs alleged in what respect the answer was untrue. Section 4325, Code 1907.

The plaintiffs contested the answer of the garnishee on the grounds that the defendant W. E. Sowell, while indebted to them as averred in the complaint, deposited with the garnishee in the name of his wife $1,000, which was his and not his wife's property; that it had not been paid out by the garnishee when the writ was served on it, and this money was deposited in her name as a mere subterfuge, or for the purpose of hindering, delaying, or defrauding plaintiffs in the collection of their debt; and plaintiffs also allege in another ground of contest that the deposit of that sum in his wife's name was without consideration, and a mere gift from him to her, and was void as to plaintiff's debt.

The garnishee took issue on those grounds of contest; and also replied specially to each that it was in the general banking business, and the entire deposit, before making its answer to the writ of garnishment. was paid out by it on checks of the wife without any notice or knowledge that the money did not belong to her or that it was deposited by the defendant in her name as a mere subterfuge or with intent to hinder, delay, or defraud plaintiffs in collecting their debt.

The court gave the general affirmative charge with hypothesis in favor of plaintiffs, and refused to give a similar charge in favor of the garnishee. There was a verdict by the jury in favor of the plaintiffs, judgment thereon by the court, and from it the garnishee appeals.

The giving and refusing by the court of these two charges are 2 of the 51 errors assigned by the garnishee.

The following evidence was undisputed in this case: The defendants owed plaintiffs $348 on March 6, 1922. This debt was contracted by the defendants as evidenced by a note given by them, waiving exemptions as to personal property, on December 5, 1919. Suit was filed thereon by plaintiffs, and garnishment in aid of the pending suit was sued out on November 16, 1921, and the writ of garnishment was served on the garnishee on November 16, 1921. Judgment was rendered by the court in favor of plaintiffs and against the defendants on March 6, 1922, for $348 debt and $11.15 costs. This judgment contained a waiver of exemptions as to personal property by each defendant.

The defendant W. E. Sowell owned 79 acres of land in the county. It was all the real estate owned by him. He and his wife were citizens of Alabama, and had resided on this land for years as their homestead. It was used and occupied by them as a homestead when the debt of plaintiff was contracted, and until it was sold and conveyed to Foshee by them, and its value was $2,000.

There were two mortgages on this land given by W. E. Sowell and his wife. Both mortgages were due. One was given to George M. Forman & Co., which, with interest, amounted to $607; and the other was given to the garnishee, which, with interest, amounted to $323.31.

On November 15, 1921, W. E. Sowell contracted to sell the homestead, 79 acres, to D. R. Foshee for $2,000. His wife refused to sign the deed unless W. E. Sowell would consent for $1,000 of the purchase price to go to her to buy another home. He agreed for her to have one-half of the proceeds of the sale before she would consent to and before she executed the deed, and then she joined with him in conveying the homestead of D. R. Foshee. D. R. Foshee paid the purchase price by giving his check to the garnishee for $2,000 drawn on the garnishee, payable to the garnishee, dated November 15, 1921, and the garnishee paid out the $2,000, as follows: $323.31 to itself to satisfy its mortgage on the land; $607 to George M. Forman & Co. to satisfy their mortgage on the land; and paid in cash to W. E. Sowell, the defendant, $69.69; and deposited in its bank to the credit of said Mrs. W. F. Sowell the sum of $1,000. None of the proceeds of the sale of the 79 acres was paid to or went into the actual possession of the defendant W. E. Sowell, except the $69.69. The $1,000 was deposited to the credit of Mrs. Sowell as she directed. On November 21, 1921, she purchased another homestead and drew her check on the garnishee for $700 to pay for it, and on December 1, 1921, she drew by check out of the bank $50, and on December 9, 1921, she drew by her check out of the bank $250, the balance due her.

The defendant W. E. Sowell and his wife were and are resident citizens of Alabama. This was their homestead. It was occupied by them as such until it was sold and conveyed to Foshee. It did not exceed in area 160 acres, nor in value $2,000. It was exempt from levy and sale under execution for the debt of plaintiffs during his life and occupancy, and during the life of the widow, if she survived the husband, and minority of the children. Section 4160, Code 1907.

Mrs. Sowell owned no title or interest in the homestead during the life of the husband that she could sell; but he could not alienate it without her consent, expressed as the statute requires. Section 4161, Code. Any conveyance made by him to Foshee would have been void without her voluntary signature and assent in the manner required by section 4161 of the Code of 1907. She as his wife had the right to occupy it as a homestead with him during his life. Winkles v. Powell, 173 Ala. 51, 55 So. 536. She under certain conditions mentioned in the statute, section 4190, had the right during his life to claim it as a homestead, exempt from the payment of his debts. If she survived him, she had the right to occupy it until her death. Sections 4160 and 4196, Code 1907. If she survived him, then she could have retained the homestead until it was ascertained whether his estate was solvent or insolvent, and if it was insolvent, then the title to the homestead would vest in her, the widow, and the minor child or children, if any, absolutely. Section 4196. If she survived him, and this 79 acres constituted all the real estate owned in this state by him at his death, and it was set apart as a homestead to the widow and minor child or children, or either, then the title to such homestead would vest absolutely in them. Section 4198, Code 1907. If they had abandoned it as a homestead, and she had survived him, then she would own a dower interest in it under section 3812, unless deprived of it in whole or in part by her separate estate, if any, under section 3814, Code 1907. Winkles v. Powell, 173 Ala. 46-51, 55 So. 536, W. E. Sowell, the husband, was seized in fee of this 79 acres of land during his marriage to this wife; and under section 3812 of the Code of 1907 his wife had a right of dower in it.

Under the undisputed evidence it was used by them until sold as a homestead, and its value was $2,000, and its area less than 160 acres. Under the undisputed evidence, she had a homestead interest in it. The wife, Mrs. Sowell, had a right of dower in and a homestead interest in this land before and when they conveyed it to Foshee. By their deed to Foshee she conveyed to him both of these rights or interests. Were they valuable, either or both of them? Were they or either of them a valuable consideration to support and sustain the transfer to her by her husband of the $1,000 of the purchase money for her executing the conveyance to Foshee of the land? Could the plaintiffs creditors of her husband, legally complain at her receiving the $1,000 for her signing the conveyance? These are questions presented by this record for us to answer.

In Gordon Rankin & Co. v. Tweedy, 71 Ala. 210, this court wrote: "The release by a married woman of her inchoate or contingent right of dower in lands owned by her husband, of which she is lawfully dowable, may constitute a valuable consideration for the execution of a deed by him to her. And the same is true, whether the release be made contemporaneously with the deed, or pursuant to a preceding agreement."

See, also, Hoot v. Sorrel, 11 Ala. 386; Bump on Fraud. Con. 303; Bk. of U.S. v. Lee, 13 Pet. 107.

"Yet such a contract must be reasonable and free from fraud in order to be sustained in equity, and should be especially scrutinized when made to a wife by a husband who is insolvent or in failing circusmtances." Keel v. Larkin, 83 Ala. 142, 3 So. 296, 3 Am. St. Rep. 702.

In 20 Cyc. 523, § b, headnotes 41, 42, and 43, we find this general rule:

"The release by a wife of her

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