Smith v. Pearce

• Citation: 4 So. 616,85 Ala. 264
• Parties: SMITH ET AL. v. PEARCE.
• Decision Date: 09 July 1888
• Court: Supreme Court of Alabama

4 So. 616

85 Ala. 264

SMITH ET AL. v. PEARCE.

Supreme Court of Alabama

July 9, 1888

Appeal from circuit court, Calhoun county; JOHN B. TALLEY, Judge.

Ejectment by John T. Pearce against John F. Smith and others for the recovery of a certain lot. Defendants pleaded the general issue, and issue was joined thereon, and the case was submitted to the court upon an agreed state of facts. Both plaintiff and defendants claimed title to the land from one common source, William M. Taylor. Taylor purchased the land from one Martin in 1878. After the purchase of the land from Martin, Taylor lived on it, with his family, until about Christmas of the year 1880. Some time in the fall of that year, Taylor had a verbal agreement with one De Arman that he would convey to him the land; and in January following (1881,) upon De Arman paying part of the purchase money, he made a deed purporting to convey the land; but the signature of the wife was not properly acknowledged, as required by the statute,-the acknowledgment of the wife being made with the husband, and irregular in other respects. Taylor continued to live thereon, claiming to be a renter from De Arman of three rooms in the house wherein he lived, and for which he paid De Arman rent, until some time in February, 1881, when he left with his family. In November, 1881, De Arman sold that conveyed the lot to defendant John F. Smith; and it was under this deed that he claimed the lot when it was levied on by the sheriff, and which he relied on as a defense to plaintiff's action. In February, 1882, plaintiff, Pearce recovered judgment against said W. M. Taylor and one George M. Taylor. Execution issued thereon March 27, 1885, and was levied on the lot, which was sold thereunder, and was bought by plaintiff, who obtained a deed therefor from the sheriff which was duly recorded. There was no evidence that the said Taylor had ever filed in the probate office, or lodged with the sheriff, any declaration claiming said property as exempt to him from levy and sale at any time before the levy and sale of the same by the sheriff. The court gave the affirmative charge to the jury in favor of plaintiff, and defendants appealed.

Bishop & Hanna, C. C. Whitson & Bros., and Willett & Willett, for appellants.

Kelly & Smith, for appellee.

SOMERVILLE J.

The present case must turn on one question, was the house and lot in controversy the homestead of Taylor, owned and occupied by him as such, at the time of the attempted conveyance of the premises by him to De Arman on January 5, 1881? If it was his homestead, this deed is admitted to be void on account of a manifest defect in the certificate of the wife's acknowledgment. Motes v. Carter 73 Ala. 553; Code 1876, § 2822. The legal title of the premises, being unaffected by the void conveyance, which is a mere nullity, would remain in the grantor, and be subject to the lien of the plaintiff's execution issued March 27, 1885, under which the premises were sold and purchased by plaintiff on June 29, 1885; the defendant in execution, Taylor, having then abandoned the premises, and ceased his occupancy. Striplin v. Cooper, 80 Ala. 256; Alford v. Lehman, 76 526. If De Arman acquired no title under his deed, the defendant in this action, who claims under him, obviously acquired no better estate or title than his vendor had. The controversy is simply one as to the relative superiority of the title supposed to be acquired by De Arman under his deed, and that acquired by plaintiff under his execution sale. The record, we may add, shows that the deed from Taylor to De Arman was acknowledged by the wife on July 21, 1885, so as to correct the imperfections of the former certificate. This was nearly a month after the sale of the property under plaintiff's execution. But it is too obvious for argument that this fact can exert no influence on the case, because the new acknowledgment could not operate retrospectively to take away...