Woodstock Iron Co. v. Richardson

• Decision Date: 06 November 1891
• Citation: 94 Ala. 629,10 So. 144
• Parties: WOODSTOCK IRON CO. ET AL. v. RICHARDSON ET AL.
• Court: Alabama Supreme Court

10 So. 144

94 Ala. 629

WOODSTOCK IRON CO. ET AL. v. RICHARDSON ET AL.

Supreme Court of Alabama

November 6, 1891

Appeal from circuit court, Calhoun county; LEROY F. BOX, Judge. Reversed.

Action of ejectment by Lucy Richardson et al against the Woodstock Iron Company et al. From a judgment for plaintiffs defendants appeal.

This was a statutory action of ejectment, brought by the appellees, as the only heirs at law of W. B. Bonds, deceased against the appellants, and sought to recover certain described lands. There were originally two suits, which by agreement were submitted to the court without the intervention of a jury, as one case. The defendants claim title by a deed of conveyance executed by W. B. Bonds and his wife, Lucinda Bonds, on January 5, 1880. All the other facts necessary to a full understanding of the case are sufficiently stated in the opinion. Upon the submission of the case, the court announced a special finding, holding that the deed made by W. B. Bonds and Lucinda Bonds, his wife, was void because not properly acknowledged by Lucinda Bonds, and therefore rendered judgment for the plaintiffs. This judgment is appealed from by the defendants, and the same is assigned as error.

Caldwell & Johnston and Knox & Bowie, for appellants.

Cecil Browne and Kelly & Smith, for appellees.

COLEMAN J.

When this case was before the court at a former term, it was held that a conveyance of the homestead, in all respects effectual for that purpose, except that it was not acknowledged by the wife as required by law, was a nullity; and that a proper acknowledgment made by the wife after the death of the husband did not defeat or affect the title of the heirs. This conclusion necessarily resulted from well-settled principles of law, as declared by repeated decisions of this court, and many of them being referred to in the opinion. Richardson v. Iron Co., 90 Ala. 268, 8 South. Rep. 7. The question presented on this appeal was not considered in that opinion and could not have arisen from the evidence as then stated in the record. The undisputed facts, as they appear in the present record, show that the instrument was signed and dated and properly attested by two witnesses, but not acknowledged by the wife in the manner required by law for the conveyance of a homestead,^[1]and a few days prior to its delivery to the grantee. That at the time it was signed, dated, and attested, the grantor and his wife occupied as a homestead the land described in the instrument. The testimony further shows that at that time the husband and owner of the land contemplated and was preparing to change his homestead, and a few days thereafter actually removed and occupied another and different place as his homestead. The evidence further shows that, prior to his removal, the grantor and grantee were negotiating for the sale and purchase of the land then occupied as a homestead, and, in pursuance of the understanding between them, the instrument was prepared, signed, dated, and duly attested, as above stated. The evidence further shows that the grantor retained the instrument in his own possession and under his control until he had acquired a new homestead. That subsequent to his removal to the newly-acquired homestead the purchase money was paid for the premises conveyed, and the deed, without the acknowledgment by the wife, delivered to the grantee. These facts are not controverted. "Delivery is essential to give effect to a deed; *** that, though signed, attested, or acknowledged, so long as the grantor...