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[Fellows v. Lewis. ]

515; Knevan v. Specker, 11 Bush, Ky. 1; Vogler v. Montgomery, 54 Mo. 577; Smith v. Brunsey, 33 Mich. 183; Hugunin v. Dewey, 20 Iowa, 368; Drentzer v. Bell, 11 Wisc. 114; Pike v. Miles, 23 Wisc. 164; Murphy v. Crouch, 24 Wisc. 365; Succession of Cottingham, 29 La. Ann. 669; Edmonson v. Meacham, 50 Miss. 34; Wood v. Chambers, 20 Texas, 247; McFarland v. Goodman, 6 Bissell, 111; Cox v. Wilder, 2 Dillon, 45; Smith v. Kerr, Ib. 50. The following cases hold the contrary doctrine; but in some of them, it will be seen, the facts were different: Gotzler v. Saroni, 18 Ill. 511; Currier v. Sutherland, 54 N. H. 475; Henry's appeal, 29 Penn. St. 219. In the cases cited above, negativing the liability of the homestead which has been fraudulently conveyed, the reasons given are substantially as follows. The property, homestead, is not liable to seizure under execution, and, therefore, a conveyance of it is a question in which the creditor has no interest. It was not liable, before conveyance, to the claim he asserts; and the conveyance, though fraudulent, puts the creditor in no better condition than he was in before. If the conveyance is set aside as fraudulent, this leaves the homestead as if no attempt had been made to convey it, so far as any claim can be asserted by the creditor. It is void as to him, to all intents and purposes. He cannot be heard to say, in one and the same breath, that the conveyance is void, in its attempt to devest title out of the debtor, but is valid in destroying the homestead right. He can not claim both under and against the conveyance; under it, as a valid parting with the homestead right; against it, as an abortive effort to pass title out of the debtor. It must stand, as to him, as if no conveyance had been attempted.

The case of Cox v. Wilder, 2 Dillon, 45, was a suit by an assignee in bankruptcy, to set aside as fraudulent a deed by the bankrupt and his wife, conveying a body of lands. The deed was pronounced fraudulent, and was set aside. The question was, did these proceedings bar the dower-right of the wife? The rule as to dower is said to be the rule as to homestead. Thompson on Homestead, sections, 405 to 409. DILLON, J., with his accustomed force, said: "We solve the question here presented as to dower, when we determine under whom the assignee claims, and to whose rights he succeeds. He claims not under, but adversely to the deed of Wilder. He succeeds to all the interests of the bankrupt, and represents his creditors, so far as to enable him to attack conveyances made by the bankrupt in fraud of their rights. He claims that the deed is void as to creditors, and on this ground alone he attacks it; and upon this ground alone has he any right to the property. He says it

[Fellows v. Lewis.]

is void as to creditors, because fraudulent, and for this reason asks to be invested with the title which it fraudulently conveyed. He cannot claim under it, and must claim against it. When it is decreed to be fraudulent and void at his instance, how can he set it up to defeat the right of the wife to dower? Such a position involves this inconsistency, viz., that it asks that the same instrument be held void as to creditors, and then in their favor held valid as to the wife." In another place he says: "Similar considerations, in my judgment, apply to the homestead right."

Lishy v. Perry, 16 Bush, Ky. 515, was a case of homestead conveyed, which creditors sought to subject to their demands, for alleged fraud in the conveyance. The court said: "Whatever may have been his intention in making the conveyance to Clayton, it can not be said that any legal right of the appellants was violated by the conveyance of property which was exempt from liability to sale for their debt."

The deed under which Mrs. Lewis claims was, as we have said, executed on the fifth day of December, 1874. Mr. Grey, the grantor, died three months afterwards, and long before the bill in this case was filed. Neither at the making of the deed, nor at the time of his death, had he wife or child. He had his domicile on the lands in controversy, when he made the conveyance; and was entitled to a homestead exemption therein, under the constitution of 1868. What was the duration of his homestead claim? Did he hold the homestead by a tenure different from that by which he held his other lands? and if so, in what respect different? His title to the entire tract was a fee. The constitution and statute declare, that the homestead "shall be exempted from sale on execution, or any other process from a court, for any debt contracted since the thirteenth day of July, 1868, or after the ratification of this constitution." Mr. Grey, as we have seen, left neither wife nor child surviving him. Supposing he had died the owner of the homestead, without conveying it, what would have been its status? how held, and by whom held, after his death? Would its exemption from sale on execution, or other process of a court, for debt, have adhered to it, in the hands of his next of kin, as heirs at law? If so, then the homestead would have passed by descent to his heirs at law, and could not have been taken possession of, or utilized by his personal representative in the payment of his debts, although his estate otherwise might be insolvent. No one ever supposed that, on the death of a landholder, having a homestead, leaving neither minor child nor widow, the descent of the homestead is governed by rules different from those which govern in the descent of his other

[Fellows v. Lewis.] .

landed estate. All go alike to the devisee, or heir, subject to a prime and paramount liability for the debts of the ancestor. If decedent leave minor child, or widow, him surviving, then the exemption is prolonged; not otherwise.--Const. of 1875, Art. 10, sections 2, 3, 5; Code of 1876, §§ 2820, 2821, 2840. The exemption of Mr. Grey's homestead from his debts was only during his life.

In the case of Chambers v. Sallie, 29 Ark. 407, the court said: "The legal effect of the act is to create no new estate, but to protect the occupant of the land in the use and occupancy of the land so set apart as a homestead, during the time of such occupancy; but, if abandoned, by removal or death, leaving neither wife or children to succeed to his rights, the rights of the judgment creditor would be fully restored."-See, also, Norris v. Kidd, 28 Ark. 485. If we were to hold that, by Mr. Grey's conveyance of the homestead while he occupied it as such, he invested Mrs. Lewis with a fee exempted from his debts, notwithstanding the deed was voluntary or fraudulent, the result would be to accord to a conveyance, which all the authorities say is inoperative against creditors, the wonderful power of converting a temporary exemption from debt, into a fee simple absolute. Upon a consideration merely good, he could not convey to her greater rights and greater exemptions than he had himself. Although Mrs. Lewis could hold the homestead during the life of Mr. Grey, her authority and right ceased at his death, and the property then became liable to his debts. In other words, the conveyance vested in her all the rights in the homestead which he could assert against his creditors; nothing more.

With the single exception of the error announced above, we concur in all the conclusions reached by the chancellor, in his very able and carefully prepared opinion. The conveyances must be pronounced voluntary, and constructively fraudulent, as againt existing creditors.-Bibb v. Freeman, supra; Sandlin v. Robbins, 62 Ala. 477. We hold, also, there is no ground on which to claim homestead. We hold, too, that the chancellor did right in decreeing that the assets in the hands of the Alabama administrator must be first exhausted, before these creditors shall be allowed to sell the property conveyed to Mr. and Mrs. Lewis; and to enable the court to administer the assets on this equitable principle, we approve the order, removing the administration into the Chancery Court. This the chancellor was authorized to do, under the prayer for general relief, found in both the original and cross bill.

The decree must be reversed on the errors assigned for

65 358 123 423

[McDonald v. Mobile Life Insurance Co.]

the complainants in the court below, and the cause remanded, to be proceeded in according to the principles of this opinion. There is nothing in the cross assignments by Mrs. Lewis, and she can take nothing thereby.

McDonald v. Mobile Life Insurance
Company.

Bill in Equity for Foreclosure of Mortgages, Account, &c.

1. Conclusiveness of decree in chancery.-A decree in chancery, like a judgment at law, when rendered on the merits, is final and conclusive, not only as to facts or issues actually decided, but as to all points necessarily involved in the matter adjudicated.

2. Same. Under a bill filed by a married woman, for the purpose of setting aside, as invalid, a mortgage executed by her as a femme sole, under authority of a special statute declaring her a free-dealer, a decree dismissing the bill, rendered on a demurrer which went to the whole case, is conclusive as to the validity of the special statute, and estops her from attacking its constitutionality, in a subsequent suit to foreclose the mortgage.

3. Purchase under judgment or decree afterwards reversed.-When a party purchases lands under a judgment or decree, whether he be the original plaintiff in the suit, or an assignee of the judgment or decree, he acquires only a defeasible title, liable to be defeated by a subsequent reversal of the judgment or decree; and this rule obtains, whether the reversal is based on an amendable defect, or on one which is incurable.

APPEAL from the Chancery Court of Jefferson.
Heard before the Hon. CHARLES TURNER.

The original bill in this case was filed on the 30th October, 1874, by the Mobile Life Insurance Company, a domestic corporation, against Mrs. Cynthia Ann McDonald, the wife of W. J. McDonald, who was described in the bill as a femme covert, made a free-dealer by special act of the General Assembly of Alabama," with several other persons; and sought an account and foreclosure of several mortgages on town lots in Birmingham, executed by Mrs. McDonald. The complainant's mortgages were three in number, dated the 26th July, 1872, the 30th January, 1873, and the 30th February, 1873, respectively; each of which was given to secure the payment of a promissory note executed by Mrs. McDonald to the complainant, of even date with the mortgage, and contained a power of sale on default being made in the payment of the secured note. J. A. Going & Co. were also made defendants to the bill, as the assignees and owners

[McDonald v. Mobile Life Insurance Co.]

of another mortgage on the lots, dated the 10th February, 1873, and executed by Mrs. McDonald and her husband to secure the payment of a promissory note due to one W. W. Brown, by whom the note and mortgage were assigned to said Going & Co.; and several judgment creditors, whose executions had been levied on the lots, were also joined as defendants. The bill prayed an account and foreclosure of the several mortgages, an adjustment of the equities among all the parties, and a sale of the lots free from incumbrance. Decrees pro confesso were taken against all the defendants; and the cause being submitted for final decree, on the bill and exhibits and the decrees pro confesso, the chancellor rendered a decree for the complainant, declaring that the amount due to the complainant, as computed and reported by the register in open court, was $2,427, and ordering a sale of the lands. From this decree Mrs. McDonald sued out an appeal to this court, and assigned as error, with other matters, the rendition of the decree against her "without any proof that she was or had been relieved of the disabilities of marriage;" and this court reversed the chancellor's decree, on that ground, and remanded the cause, during the December term, 1876, as shown by the report of the case in 56 Ala. 468-71.

On the 1st March, 1875, before the former appeal was sued out, the register sold the land under the decree, the complainant becoming the purchaser, at the price of $2,035.75; and the sale was duly reported to the court, and by it confirmed at the May term, 1875, before said appeal was sued out. After the reversal of the decree, and the remandment of the cause, the bill was amended, by setting out in full the special statute by which, as it averred, Mrs. McDonald was declared and made a free-dealer. This statute, which was approved on the 21st December, 1868, was entitled "An act to constitute Susan M. McNair, and others therein named, free-dealers"; and by its provisions it declared Mrs. McNair, and nine other women therein named ("Cynthia Ann McDonald, of Hale county," among them), to be free-dealers, with power to contract, to sue and be sued, &c., in their own names, as it sole and unmarried.-Session Acts 1868, p. 540. The amended bill alleged, also, that on the 13th October, 1874, (?) when complainant was about advertising said lots for sale under the powers of sale contained in said. several mortgages, a bill for injunction was filed by Mrs. McDonald and her husband, seeking to enjoin the sale, and to have the mortgages declared void and inoperative, on account of the invalidity of said special statute declaring her a free-dealer, and because her husband did not join with her

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