Richardson v. Woodstock Iron Co.

• Decision Date: 28 May 1890
• Citation: 90 Ala. 266,8 So. 7
• Parties: RICHARDSON ET AL. v. WOODSTOCK IRON CO. ET al.
• Court: Alabama Supreme Court

8 So. 7

90 Ala. 266

RICHARDSON ET AL. v. WOODSTOCK IRON CO. ET al.

Supreme Court of Alabama

May 28, 1890

Appeal from circuit court, Calhoun county; LEROY F. BOX, Judge.

This was a statutory real action in the nature of ejectment, and was brought by the appellants against the appellees, and sought to recover certain lands specifically described in the complaint. The plaintiffs sued as the heirs of Winfrey Bond. The land which they sought to recover was on January 5, 1880 owned and occupied by said Bond and his family as a homestead. On said date of January 5, 1880, the said Bond and his wife executed a deed of the lands in controversy to one C. A. Sprague. This deed was signed by both said Winfrey Bond and his wife, was attested by two witnesses, but there was no separate examination and acknowledgment by the wife at that time as to her voluntary execution of the paper, as required by statute. These lands were sold by said Sprague in 1881 to the Woodstock Iron Company, and in 1882 the said Woodstock Iron Company resold and reconveyed a part of said lands to said Sprague, and he in 1887 deeded said lands to his wife. On August 13, 1884, said Winfrey Bond died, and left the plaintiffs surviving him, who are his children and heirs. On January 14, 1889, there was a separate examination of the wife of said Winfrey Bond, deceased, and a separate acknowledgment by her that she had executed the said deed to Sprague, bearing date January 5, 1880, voluntarily, and of her own free will and accord, and without fear or constraint on the part her husband, in the regular statutory form. The said Sprague and his subsequent grantees were made defendants. The plaintiffs asked the general affirmative charge in their favor, which the court refused to give, and they thereupon duly excepted. At the request of the defendants in writing, the court charged the jury as follows "If the jury believe the evidence they must find for the defendants." The plaintiffs excepted to this charge. There was verdict and judgment for the defendants, and the plaintiffs bring this appeal, and assign the refusal to give the charge asked by the plaintiffs and the giving of the one requested by the defendants as error.

Cecil Browne and Kelly & Smith, for appellants.

Knox & Bowie, for appellees.

MCCLELLAN J.

The bill of exceptions as to one point reserved is in the following language: "The defendants then asked the court to give the following charge, which was in writing, viz.: 'If the jury believe the evidence they must find for the defendant;' and plaintiff objected to the giving of this charge. The court overruled plaintiff's objection, and gave the charge to the jury, to the giving of which charge the defendants jointly and severally excepted." The recital quoted, that the defendants excepted, is so manifestly clerical misprision that we will treat the exception as having been properly reserved by the plaintiffs. We entertain no doubt that, under the facts adduced on the trial, the land in controversy constituted the homestead of Winfrey Bond on January 5, 1880, the date of the attempted conveyance by him and his wife to Sprague. Smith v. Pearce, 85 Ala. 264, 4 South. Rep. 616.

The one other question presented by this record is whether in case the wife fails to acknowledge a conveyance of the homestead as required by section 2508 of the Code, at the time of its execution, or subsequently, during the life of the husband, she may do so efficiently, as against the heirs, after his death. The point has not been decided in this state or elsewhere, that we are aware of. It has been several times adjudged that the certificate of such acknowledgment may be added, and that the acknowledgment itself may be made at any time after the signing of the deed, and be effectual by relation from the date of signature, provided the rights of purchasers or creditors have not supervened. Johnson v. McGehee, 1 Ala. 186; Nelson v. Holly, 50 Ala. 3; Hendon v. White, 52 Ala. 597; Balkum v. Wood, 58 Ala. 642; Cahall v. Association, 61 Ala. 232; Smith v. Pearce, supra; Vancleave v. Wilson, 73 Ala. 387. And in some of these cases it is said that such after acknowledgment and certificate will have relation back to the delivery of the instrument, and validate the otherwise void conveyance from that time, as against the grantor and his heirs. Hendon v. White, supra. We apprehend, however, that what was meant by this reference to heirs was no more than this, when applied to a case like the present: that where the subsequent acknowledgment was made in the life-time of the husband neither he nor his heirs after his death could impeach...