King Lumber Co. v. Crow

46 So. 646, 155 Ala. 504, 1908 Ala. LEXIS 332

• Court: Supreme Court of Alabama
• Decided: May 14, 1908
• Status: Published

Opinion

McCLELLAN, J.

Bill to quiet title. The property in question was the homestead of one Coe and wife. The respondent (appellant) rested his claim to the property upon a mortgage from Coe and wife to the King Lumber Company. The acknowledgments of the mortgagor and his wife were taken by J. W. Hood, who purported to be “judge of the inferior court of Woodlawn, Jefferson county, Ala.” The complainant (appellee) assails the separate acknowledgment of the wife as wholly void, because the act creating such court and a judge therefor is unconstitutional. This contention must be sustained, for the reason to be stated.

It appears from the journals of the Senate and House that, after the bill had passed the House, where it originated, the senate amended it 'by way of substitution of another bill therefor. This substituted bill contained sections 18, 19, and 20, which conferred additional, to that otherwise given by the bill, jurisdiction and powers on that court or judge created by the bill. This amending by the Senate was concurred in by the House, and as amended the House passed the bill, thus approving with the view to enactment, the whole bill, which, as said, embraced sections 18, 19, and 20. The bill signed by the Speaker of the House, the President of the Senate, and the Governor did not contain said sections 18, 19, and 20; the result being that the bill passed by the Legislature was not the bill signed by the officers whose signatures, after the method required by the Constitution, are essential to a valid enactment. The question raised by this status is within the principle asserted and appli ed in Moog v. Randolph, 77 Ala. 597. We, of course, cannot assume that the Legislature would have favorably acted upon the substituted bill, had it not contained the material provisions set forth in sections 18, 19, and 20; nor that the Governor would have approved the bill, had it, as presented to him, embraced those sections. We therefore pronounce the act unconstitutional; and, being so, there was legally created no such office as “judge of the inferior court of Woodlawn, Jefferson county, Ala.,” and hence no basis on which to rest an application of the rules saving the acts of de facto officers.

Tbe result is that the first mortgage of Coe and wife to appellant, undertaking to convey the homestead, was without the essential separate acknowledgment of the wife, and void, certainly to the extent of the homestead interest in the premises. The other phase of the decree, whereby the excess above $2,000 was condemned to the pro tanto satisfaction of the appellant's mortgage debt, is, of course, without prejudice to the appellant, and so will not be considered.

The decree appealed from is therefore affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.