Wallace v. Feibelman

• Decision Date: 21 November 1912
• Citation: 60 So. 290,179 Ala. 589
• Parties: WALLACE ET AL. v. FEIBELMAN.
• Court: Alabama Supreme Court

60 So. 290

179 Ala. 589

WALLACE ET AL. v. FEIBELMAN.

Supreme Court of Alabama

November 21, 1912

Rehearing Denied Dec. 17, 1912.

Appeal from Law and Equity Court, Marengo County; Edward J. Gilder Judge.

Statutory ejectment of H. A. Feibelman against Dina Wallace and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Reese &amp Reese, of Selma, and B. F. Elmore, of Demopolis, for appellants.

William S. Hurd, for appellee.

DE GRAFFENRIED, J.

A conveyance by the husband of his homestead to his wife, if accepted by the wife, is, under the laws of this state, a valid conveyance of the legal title, although the wife may not sign or acknowledge the conveyance. Turner v Bernheimer, 95 Ala. 244, 10 So. 750, 36 Am. St. Rep 207. A conveyance by the husband of his homestead to any person other than his wife is, unless the conveyance is voluntarily signed and acknowledged by the wife, separately and apart from the husband, void under the laws of this state. Const. Ala. 1901, § 205; Code of Alabama 1907, § 4161.

The conveyance to which we hereinafter refer was executed prior to the adoption of the Constitution of 1901, and the Code of 1886, which controlled when said conveyance was executed, contained provisions identically similar to those in the Constitution of 1901, and the Code of 1907, above cited. In other words, the law of the state on the subject under discussion was the same when the conveyance was executed as it is to-day.

1. On the 4th day of January, 1890, Calvin Wallace, the husband of Dina Wallace, and the father of five minor children, the oldest of whom was then only 13 years of age, executed and delivered to his said wife and children a deed conveying to them as tenants in common, share and share alike, the house and lot in controversy. The house and lot was then the homestead of the grantor. The wife and children at the time of the conveyance resided there with him, and the grantor resided there with his said wife until his death, which occurred shortly before the bringing of this suit, and about 20 years after the execution of said conveyance. The property covered by the conveyance was in area and value less than that fixed by our laws for the homestead. The wife after the death of the husband continued to reside upon said property until this suit was brought. The above conveyance operated as a valid conveyance by the husband to the wife of the legal title to an undivided one-sixth interest in the land, but was void as a conveyance to the children of the other five-sixths interest. Turner v. Bernheimer, supra. The law hates an indirection, and will not permit that to be done by indirection which cannot be directly done. A conveyance to six grantees which conveys an undivided one-sixth interest in a tract of land to each grantee has the same legal effect as six simultaneous separate conveyances, each of said conveyances conveying an undivided one-sixth interest in the land to each of said six grantees. The above conveyance had the same legal effect as if the husband had by one conveyance conveyed an undivided one-sixth interest to the wife, and by another conveyance, without the voluntary signature of the wife acknowledged as required by law, conveyed the other five-sixths interest to said five children. This latter deed would, of course, under our Constitution and statutes be void.

In the case of Turner v. Bernheimer, above cited, this court decided that a conveyance of the homestead by the husband to the wife, delivered to and accepted by her, was not an alienation of the homestead within our constitutional and statutory provisions, and was effectual to convey to the wife the legal title to the land, and that was all that this court in that case did determine. The quotation in the opinion in that case from Thompson on Homesteads, § 473, that laws requiring the voluntary assent and signature of the wife to an alienation of the homestead "are not intended to interpose obstacles in the way of a conveyance of the homestead to the wife or to the wife and children, with the consent and approval of the wife, whatever may be the form of such conveyance," has no applicability, so far as conveyances to children are concerned, to the subject of the alienation of homesteads in Alabama under its Constitution and statutes. Section 2508 of the Code of Alabama of 1886, the Code which existed at the time of this conveyance, expressly declares that "no mortgage, deed or other conveyance of the homestead by a married man shall be valid without the voluntary signature and consent of the wife, which must be shown by her examination, separate and...