Nolen v. East

61 So. 261, 181 Ala. 226, 1913 Ala. LEXIS 103

• Court: Supreme Court of Alabama
• Decided: February 13, 1913
• Status: Published

Opinion

ANDERSON, J.

As has been several times observed by this court in discussing the homestead exemption: “The great- controlling purpose and policy of the Constitution is the protection, the preservation of the homestead — the dwelling place — the roof that shelters. The Constitution and statutes -protect it from liability to the payment of debts, and, when the owner is a married man, subject to the restrained alienation. * * * Usually it is accompanied by an estate or interest; but, if it is not, it is the misfortune of the occupant.” — Griffin v. Chattanooga R. R. Co., 127 Ala. 572, 30 South. 524, 85 Am. St. Rep. 143; Watts, v. Gordon, 65 Ala. 546. “There is no limitation to any particular estate, either as to duration, quality, or extent. It is the land upon which the dwelling place of the family is located, used, and occupied as a home which the Constitution and statute protects, however inferior may be the title, or limited the estate or interest." — Tyler v. Jewett, 82 Ala. 93, 2 South. 905; Bailey v. Dunlap Co., 138 Ala. 415, 35 South. 451.

It may be true, that Dunnaway, the vendor, who gave the complainant a bond for title, had the legal title to the land when he conveyed the same to the respondent Nolen, and that Nolen, not only paid the balance of the purchase money due from the complainant East to Dunnaway, but did so at the request of the said East; still East was in the possession of the land as a homestead with an equitable title or claim, under his purchase from Dunnaway, and, as he was a married man, he could only convey his interest in said homestead as is required by law. Therefore the arrangement between the complainant and- the respondent by which Nolen was to pay Dunnaway and take a deed for the land, whether it- was intended that Nolen was to get a conditional or unconditional title to the land, could not and did not operate as a conveyance or assignment of the complainant’s homestead, notwithstanding he may have had only an equitable title to same.

Whether Nolen did or did not acquire the vendor’s lien of Dunnaway upon paying the purchase money due him at the request of the vendee, East (Scott v. Land Co., 127 Ala. 165, 28 South. 709; Chapman v. Abrahams, 61 Ala. 108; Pettus v. McKinney, 74 Ala. 108), matters not, as the said Nolen has the legal title to the land which cannot be divested except by a court of equity, and he who seeks equity must do equity. The rule is analogous which governs when a mortgagor seeks to redeem. — Tyler v. Jewett, supra. The complainant has brought himself within the requirement of this just and equitable rule by offering to pay the respondent all that he paid Dunnaway in the way of purchase money due upon the land.

The decree of the chancery court is affirmed.

Affirmed.

Dowdell, G. J., and Mayfield and de Graffenried, JJ., concur.