Slappy v. Hanners

• Decision Date: 28 February 1903
• Parties: SLAPPY ET AL. v. HANNERS.
• Court: Alabama Supreme Court

33 So. 900

137 Ala. 199

SLAPPY ET AL. v. HANNERS.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Lee County; A. A. Evans, Judge.

Ejectment by W. E. Slappy and another against John M. Hanners. Judgment for defendant, and plaintiffs appeal. Reversed.

On the trial of the case it was shown that the plaintiffs claim title to the land under a deed which had been executed by the defendant, John M. Hanners, to the plaintiff W. E. Slappy and one James M. Hanners, conveying 573 acres of land, which included the 114 acres sued for in the present action. The defendant, against the objection and exception of the plaintiffs, was allowed to introduce in evidence a claim of homestead exemption of 160 acres, which included the 114 acres sued for, which claim had been regularly made and filed in the office of the judge of probate. There was also introduced in evidence a map showing the lands selected as a homestead by the defendant. The map showing the lands selected as a homestead is attached to the opinion in the present case. It was also shown that the selection of the homestead was made by the defendant after the deed conveying the tract of 573 acres was executed by him.

The court refused to give, among other charges requested by the plaintiffs, the general affirmative charge in their favor but gave at the request of the defendant the general affirmative charge in his favor. To each of these rulings the plaintiffs separately excepted.

Thos L. Kennedy and Houston & Power, for appellants.

Barnes & Duke, for appellee.

HARALSON J.

The evidence shows, without conflict, that the defendant, being the owner of 573 acres of land, conveyed the same, on the 28th September, 1896, to W. E. Slappy, the plaintiff, and one James M. Hanners; that the defendant was a resident citizen of this state at the time, and resided and had his dwelling house on a part of the land, but not on the 114 acres here sued for, and that said deed was executed without the examination of defendant's wife, separate and apart from her husband, in the manner providing for the conveyance of the homestead, under the provisions of section 2034 (2508) of the Code. Under repeated decisions of this court, this deed was void as a conveyance of the homestead, and had no more effect than if it had never been executed, and in no way acts as an estoppel against the husband from afterwards claiming his homestead exemption in the land. McGhee v Wilson, 111 Ala. 615, 619, 20 So. 619, 56 Am. St. Rep 72; Marks v. Wilson, 115 Ala. 561, 22 So. 134; Cowan v. S. R. Co., 118 Ala. 560, 23 So. 754; Hayes v. S. H. B. & L. Asso., 124 Ala. 663, 26 So. 527, 82 Am. St. Rep. 216; Lyon v. Hardin, 129 Ala. 643, 29 So. 777.

Again, it is well settled, that even where there is a disconnected tract of land, not contiguous to the homestead, which is bona fide and habitually used as a part of it, and the two tracts together do not exceed the area or value allowed, they may both be selected in the shape in which they already exist; and further, that a purchaser from the husband of a large tract including the homestead, is required to take notice as to what part of the land, the husband may afterwards choose to select. Jaffrey v. McGough, 88 Ala. 650, 7 So. 333; Marks v. Wilson, supra; Lyon v. Hardin, 129 Ala. 643, 29 So. 777.

Here, the 114-acre tract sued for was not disconnected from the main body of the land, but was a part of it, the defendant's residence being about a half mile east therefrom.

A map was introduced in evidence showing the homestead selection made by the defendant. He also introduced his declaration of claim of homestead exemption of 160 acres of the original 573-acre tract of land described in the first conveyance above mentioned, which he filed in the office of the probate judge, on the 12th October, 1898, duly subscribed and sworn to by him, describing the 160 acres selected and claimed by him as exempt, which selection embraced the 114 acres sued for. This paper was objected to as evidence on the several grounds, that it was immaterial and...