Turner v. Bernheimer

• Decision Date: 05 April 1892
• Parties: TURNER ET AL. v. BERNHEIMER.
• Court: Alabama Supreme Court

10 So. 750

95 Ala. 241

TURNER ET AL. v. BERNHEIMER.

Supreme Court of Alabama

April 5, 1892

Appeal from circuit court, Mobile county, WILLIAM E. CLARKE, Judge.

Ejectment by Charles Bernheimer against Lewis W. Turner and another. Plaintiff had judgment, and defendants appeal. Reversed.

This was a statutory real action in the nature of ejectment brought by the appellee against the appellants, and sought to recover certain described real estate. The defendants pleaded the general issue, and issue was joined thereon. The uncontroverted evidence showed that the property so sued for was levied upon on June 23, 1890, under an execution issued on a judgment rendered by the city court of Mobile on April 23, 1890; that said judgment was recovered by the firm of Bernheimer, Bauer & Co., on an account due from the defendant Lewis W. Turner for goods purchased by him in September 1889; that said property was sold by the sheriff under said execution on August 25, 1890, and the plaintiff in this suit Charles Bernheimer, who was a member of the firm of Bernheimer, Bauer & Co., became the purchaser at said sale. The defendants offered to introduce in evidence a deed from the defendant Lewis W. Turner to his co-defendant, Sarah A Turner, who was his wife, executed on December 10, 1889, by which he conveyed the property sued for in this action on the recited consideration of one dollar. The defendants also offered to prove that the said Sarah A. Turner was put in possession of the property; that the property described in the complaint and conveyed by the deed was the homestead of the defendant Lewis W. Turner, and that the same did not exceed in value two thousand dollars; and that all of said property was owned, occupied, and used as a homestead by the defendant Lewis W. Turner at the time he conveyed it to his wife. Upon separate objection on the part of the plaintiff to the introduction of each portion of this testimony the court sustained the objection, and refused to allow the testimony to be introduced. The defendants separately excepted to the sustaining of each one of the objections to the introduction of each portion of the testimony. At the written request of the plaintiff the court gave the general affirmative charge in his behalf, to the giving of which charge the defendants duly excepted. Defendants assign as error the rulings of the lower court upon the evidence, and the giving of the general affirmative charge for the plaintiff.

B. B. Boone, for appellants.

Pillans, Torrey & Hanaw, for appellee.

McCLELLAN J.

The fate of this appeal depends entirely upon whether the husband can convey lands which constitute the family homestead to the wife, the deed to that end being executed by himself alone but delivered to and accepted by her. Both the organic and statute law of Alabama declare that no alienation of the homestead shall be valid without the voluntary signature and assent of the wife to the instrument intended to have that affect. The "married woman's law" of 1887 removed the legal disabilities theretofore existing between husband and wife to the extent, among others, of enabling the husband generally to sell and convey lands to the wife; but it has never been supposed, and is not, we apprehend, the law, that the statute changed in any way pre-existing requirements in respect of the alienation of the homestead further than this: that if, before its passage, the husband might have conveyed an equitable title in the homestead to the wife, he may now convey the legal title. So that the question is not really at all affected by the act of 1887, and it comes back to this: Is such a conveyance an alienation of the homestead within the...