Smith v. Gibson

• Decision Date: 14 January 1915
• Docket Number: 942
• Citation: 191 Ala. 305,68 So. 143
• Parties: SMITH v. GIBSON et al.
• Court: Alabama Supreme Court

68 So. 143

191 Ala. 305

SMITH v. GIBSON et al.

No. 942

Supreme Court of Alabama

January 14, 1915

Rehearing Denied Feb. 4, 1915

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Action by Lillie Smith against J.M. Gibson and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Parrish & Atkinson, Richard B. Kelly, and Maud McLure Kelly, all of Birmingham, for appellant.

Hanby &amp Fisk and David J. Davis, all of Birmingham, for appellees.

SAYRE J.

Appellant filed her bill in this cause to settle the title to a parcel of land in the city of Birmingham. As the only child and sole heir of her mother she claimed a third interest in the property. Defendants, two daughters of J.K. Florence deceased, claimed to own the entire fee by descent from him. Appellant's mother had lived with J.K. Florence as his lawful wife before--to avoid the possibility of misapprehension we will say next before--his death. Each of them had been married before. They occupied the property in controversy as a homestead; their respective children--they had none in common--living with them. Appellant's mother survived Florence. The property, small in area and worth less than $2,000, belonged to Florence, and was all the real estate he owned. No proceeding was had setting aside the property to the widow and children as a homestead, but they remained in possession.

Upon the death of Florence the homestead ipso facto, as among them, vested absolutely in his widow and minor children appellees, as tenants in common. Faircloth v. Carroll, 137 Ala. 243, 34 So. 182. Nothing to the contrary was held in Thacker v. Morris, 166 Ala. 395, 52 So. 73, as an attentive regard for the facts of that case will disclose. Nor is Waters v. Gadsden-Alabama City Land Co., 182 Ala. 284, 62 So. 75, opposed. That case was controlled by a status of legislation which lasted only a short time.

But appellant's mother had, before her marriage with Florence, been divorced from her former husband, as she supposed. The decree upon which she relied had been procured in the city court of Birmingham, sitting in equity, under a bill against her by her former husband O'Neal Kelly, on the ground of voluntary abandonment, filed in 1893, about 20 years before the bill was filed in this case. About 12 months later, on petition duly filed, there was a decree allowing appellant's mother to marry again, and in 1902 she married Florence, whose first wife had died, under a license duly issued by the judge of probate. The statute, then as now, provided that: No bill can be filed for a divorce on the ground of voluntary abandonment, unless the party applying therefor, whether husband or wife, has bona fide been a resident of this state for three years next before the filing of the bill, which must be alleged in the bill and proved. Code, § 3800. Now the averment of the bill in Kelly v. Kelly was that complainant had been a "resident of said state for more than three years preceding its (sic) filing of this bill." Appellees contend, and the court below held, that Kelly's bill was insufficient to give the court jurisdiction of the cause, and that the decree of divorce was for that reason null and void. If so, it would follow as of course that the decree permitting appellant's mother to marry again was of no effect, and her marriage to Florence, during the life of Kelly--and, so far as we know, he is still in life--conferred upon her no status as a lawful wife.

In Martin v. Martin, 173 Ala. 106, 55 So. 632, a decree of divorce came under review collaterally. In that case the defendant was a nonresident, so that the cause fell under the influence of section 3802 of the Code, which requires that When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved. The averment was that "orator has been a bona fide resident of Cleburne county for more than three years." It was ruled that the bill did not contain the jurisdictional allegation of complainant's bona fide residence in this state "for one year next before the filing of the bill," and that the decree was a nullity, conferring no rights. The construction leading to this result, the court observed, was...