SAYRE, J.
Harriet V. Williams died seized and possessed of a certain parcel of land. At the time she had acquired title, the land, a lot in the city of Birmingham, was under mortgage. Afterwards Mrs. Williams and her husband executed a mortgage by means of which she raised funds to discharge the original mortgage. She died May '10, 1901. M. M. Williams, surviving husband, was on his petition, appointed administrator of her estate, and, at the end of proceedings had in the probate court, her estate was declared insolvent, and June 25, 1901, the lot in controversy was set apart as a homestead to her two surviving minor children, James N. and Harry P. Williams; subject to the outstanding mortgage. The record reads “Harriet P. Williams,” but this was evidently intended for “Harry P. Williams,” and no point appears to have been made against the proceeding on account of this misnomer. In November, 1901, James N. Williams died, and in February, 1904, the then outstanding mortgage was foreclosed under a power of sale. At the foreclosure M. M. Williams became the purchaser, and afterwards, in 1912, conveyed the property to his second wife, the appellant in this cause, Myrtie S. Williams. In the meantime, January, 1910, M. M. Williams produced and procured the probate of the last will and testament of his first wife whereby she devised to him all her property. 1-Ie explains his delay in probating the will and his part in the administration of the estate of his deceased wife by saying that at that time the will had been mislaid and could not be found. The bill was filed by Virginia M. Massie, an adult daughter of Harriet V. Williams at the time of her death, and sought a sale of the lot in controversy and a division of the proceeds in lieu of partition. Myrtie and M. M. Williams, Harry P. Williams, the children of E. H. Williams, deceased, who was an adult brother of complainant at the death of their mother, and one Davis, an ihcumbrancer whose claim is not denied, and to whom no further reference need be made, are parties defendant. Appellant claims title through the will of Harriet V. Williams and the deed made to her by M. M. Williams. Appellee Harry P. Williams claims title through the probate proceeding setting apart the lot to him and his brother, James S. Complainant and the defendants other than appellant claim, also, by inheritance, the title of James Si Williams. Appellant was awarded the one-fourth interest which M. M. Williams inherited from James S. and which passed by his deed to her. Defendants set
up their interests by cross-bills. Appellant undertakes to establish her ownership of the entire, property by and through three propositions which shall be considered in turn.
(1) As a muniment of title the will of Harriet Y. Williams is superior and paramount to the proceeding by which homestead was set apart to her minor children. This cannot be sustained.
It is the well-settled law of this state that the homestead rights of widow and minor children in the realty of a deceased husband and father may not be affected by the testamentary disposition of the owner. Edmonds v. Cogsdill, 182 Ala. 309, 62 So. 691; Richter v. Richter, 180 Ala. 218, 60 So. 880; and cases thei’e cited. But here the children to whom homestead was set apart trace their title to their deceased mother, whom the father survived, and the argument is that their rights are different — that they were not entitled to homstead exemptions in the property of their mother as against the right of the mother to devise her property. Such may have been the law at one time, but, if so, section 2077 of the Code of 1896, in effect at the time of the matters and things now in dispute, supplied a well-deserved remedy. The section reads:
“2077.
Exemptions to Minor Chili or Children Allowed from Estate of Deceased Mother.
When any woman, a resident of this state, dies, leaving surviving her a minor child or children, there shall be exempt from administration and the payment of debts, in favor of such minor child or children, such property of her estate, real and personal, as is exempt by law to the widow and minor child or children, or either, from the estate of a deceased husband or father, and such exempt property shall be set apart and appraised, and held by such minor child or children, in all respects as provided in this chapter with respect to exemptions from the estate of a‘ deceased father, so far as such provisions are applicable.”
And this court in Quinn v. Campbell, 126 Ala. 280, 28 So. 676, interpreting the section at its face value, held it to be apparent from a casual reading of the section that there was in it nothing to support the contention that a minor child whose mother dies leaving a husband is not within its provisions, and that only those children whose mothers are widows at the time of her death are included within the benefits conferred. Section 209 of the Constitution provides that the estate and property of every female shall not be liable for the debts, obligations or engagements of her husband, “and may be devised or bequeathed by her, the same as if she were a feme sole”; but this section of the Constitution and its prototype in the Constitution of 1875, notwithstanding labored arguments to the contrary, appear to us to intend to secure the rights of married, women as against their husbands, and have no relation whatever to the case under consideration. Appellant also hangs a hope on the concluding clause of section 2077 of the Code of 1896,. which undertakes to confer upon exemptions allowed to minor children out of the estate of a deceased mother a status of right and title the same “in all respects as provided in this chapter (the chapter on exemptions) with respect to exemptions from the estate of the' deceased father,” and concludes, “so far as such provisions are applicable.” If this section intends that in some respect the tenure of the minor children of a deceased mother should differ from that of the children of a deceased father, it is to be regretted that it has not been clearly expressed. The difference which counsel have been able to find rests upon that strained construction of section 209 of the Constitution, our consideration of which has been heretofore sufficiently stated. No such difference appears to have occurred to court or counsel in Quinn v. Campbell, supra. The title to the homestead vested absolutely in decedent’s minor children. Munchus v. Harris, 69 Ala. 506.
(2) The surviving husband, M. M. Williams, still in life, took a life estate in the land, and to the enjoyment of that life estate, at least, appellant is entitled under his deed. This contention is based on section 2534 of the Code of 1896 reading as follows:
“2534.
Husband’s Distributive Share of the Wife’s Estate.
If a married woman having a •separate estate die intestate, leaving a husband living, he is entitled to one-half of the personalty of such separate estate absolutely; and to the use of the realty during his life, unless he has been divested of all control over it by a decree of a court of chancery, as hereinafter provided.”
The operation of this section is limited by the provision of the later enactment reproduced in section 2077 of the Code of 1896. Therefore, this contention cannot be sustained.
(3) It is alleged that appellee’s demand is stale and also barred by the statute of limitation. By reason of his inheritance from his son, James N. Williams, M. M. Williams became tenant in common with the surviving brothers and sisters of said James N.
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SAYRE, J.
Harriet V. Williams died seized and possessed of a certain parcel of land. At the time she had acquired title, the land, a lot in the city of Birmingham, was under mortgage. Afterwards Mrs. Williams and her husband executed a mortgage by means of which she raised funds to discharge the original mortgage. She died May '10, 1901. M. M. Williams, surviving husband, was on his petition, appointed administrator of her estate, and, at the end of proceedings had in the probate court, her estate was declared insolvent, and June 25, 1901, the lot in controversy was set apart as a homestead to her two surviving minor children, James N. and Harry P. Williams; subject to the outstanding mortgage. The record reads “Harriet P. Williams,” but this was evidently intended for “Harry P. Williams,” and no point appears to have been made against the proceeding on account of this misnomer. In November, 1901, James N. Williams died, and in February, 1904, the then outstanding mortgage was foreclosed under a power of sale. At the foreclosure M. M. Williams became the purchaser, and afterwards, in 1912, conveyed the property to his second wife, the appellant in this cause, Myrtie S. Williams. In the meantime, January, 1910, M. M. Williams produced and procured the probate of the last will and testament of his first wife whereby she devised to him all her property. 1-Ie explains his delay in probating the will and his part in the administration of the estate of his deceased wife by saying that at that time the will had been mislaid and could not be found. The bill was filed by Virginia M. Massie, an adult daughter of Harriet V. Williams at the time of her death, and sought a sale of the lot in controversy and a division of the proceeds in lieu of partition. Myrtie and M. M. Williams, Harry P. Williams, the children of E. H. Williams, deceased, who was an adult brother of complainant at the death of their mother, and one Davis, an ihcumbrancer whose claim is not denied, and to whom no further reference need be made, are parties defendant. Appellant claims title through the will of Harriet V. Williams and the deed made to her by M. M. Williams. Appellee Harry P. Williams claims title through the probate proceeding setting apart the lot to him and his brother, James S. Complainant and the defendants other than appellant claim, also, by inheritance, the title of James Si Williams. Appellant was awarded the one-fourth interest which M. M. Williams inherited from James S. and which passed by his deed to her. Defendants set
up their interests by cross-bills. Appellant undertakes to establish her ownership of the entire, property by and through three propositions which shall be considered in turn.
(1) As a muniment of title the will of Harriet Y. Williams is superior and paramount to the proceeding by which homestead was set apart to her minor children. This cannot be sustained.
It is the well-settled law of this state that the homestead rights of widow and minor children in the realty of a deceased husband and father may not be affected by the testamentary disposition of the owner. Edmonds v. Cogsdill, 182 Ala. 309, 62 So. 691; Richter v. Richter, 180 Ala. 218, 60 So. 880; and cases thei’e cited. But here the children to whom homestead was set apart trace their title to their deceased mother, whom the father survived, and the argument is that their rights are different — that they were not entitled to homstead exemptions in the property of their mother as against the right of the mother to devise her property. Such may have been the law at one time, but, if so, section 2077 of the Code of 1896, in effect at the time of the matters and things now in dispute, supplied a well-deserved remedy. The section reads:
“2077.
Exemptions to Minor Chili or Children Allowed from Estate of Deceased Mother.
When any woman, a resident of this state, dies, leaving surviving her a minor child or children, there shall be exempt from administration and the payment of debts, in favor of such minor child or children, such property of her estate, real and personal, as is exempt by law to the widow and minor child or children, or either, from the estate of a deceased husband or father, and such exempt property shall be set apart and appraised, and held by such minor child or children, in all respects as provided in this chapter with respect to exemptions from the estate of a‘ deceased father, so far as such provisions are applicable.”
And this court in Quinn v. Campbell, 126 Ala. 280, 28 So. 676, interpreting the section at its face value, held it to be apparent from a casual reading of the section that there was in it nothing to support the contention that a minor child whose mother dies leaving a husband is not within its provisions, and that only those children whose mothers are widows at the time of her death are included within the benefits conferred. Section 209 of the Constitution provides that the estate and property of every female shall not be liable for the debts, obligations or engagements of her husband, “and may be devised or bequeathed by her, the same as if she were a feme sole”; but this section of the Constitution and its prototype in the Constitution of 1875, notwithstanding labored arguments to the contrary, appear to us to intend to secure the rights of married, women as against their husbands, and have no relation whatever to the case under consideration. Appellant also hangs a hope on the concluding clause of section 2077 of the Code of 1896,. which undertakes to confer upon exemptions allowed to minor children out of the estate of a deceased mother a status of right and title the same “in all respects as provided in this chapter (the chapter on exemptions) with respect to exemptions from the estate of the' deceased father,” and concludes, “so far as such provisions are applicable.” If this section intends that in some respect the tenure of the minor children of a deceased mother should differ from that of the children of a deceased father, it is to be regretted that it has not been clearly expressed. The difference which counsel have been able to find rests upon that strained construction of section 209 of the Constitution, our consideration of which has been heretofore sufficiently stated. No such difference appears to have occurred to court or counsel in Quinn v. Campbell, supra. The title to the homestead vested absolutely in decedent’s minor children. Munchus v. Harris, 69 Ala. 506.
(2) The surviving husband, M. M. Williams, still in life, took a life estate in the land, and to the enjoyment of that life estate, at least, appellant is entitled under his deed. This contention is based on section 2534 of the Code of 1896 reading as follows:
“2534.
Husband’s Distributive Share of the Wife’s Estate.
If a married woman having a •separate estate die intestate, leaving a husband living, he is entitled to one-half of the personalty of such separate estate absolutely; and to the use of the realty during his life, unless he has been divested of all control over it by a decree of a court of chancery, as hereinafter provided.”
The operation of this section is limited by the provision of the later enactment reproduced in section 2077 of the Code of 1896. Therefore, this contention cannot be sustained.
(3) It is alleged that appellee’s demand is stale and also barred by the statute of limitation. By reason of his inheritance from his son, James N. Williams, M. M. Williams became tenant in common with the surviving brothers and sisters of said James N. in the equity of redemption in the property then under mortgage. His purchase at the foreclosure sale inured to the benefit of all the owners. Such is the general rule. Inglis v. Webb, 117 Ala. 393, 23 So. 125; 38 Cyc. 40; 11 Am.
&
Eng. Encyc. Law (1st Ed.) 1082, where a score of cases are cited to sustain this text: “The general rule is that a cotenant’s purchase of an outstanding title enures to the benefit of all.” Appellant relies on an expression in Savage v. Bradley, 149 Ala. 172, 43 So. 20, 123 Am. St. Rep, 30, where the court, holding that one cotenant cannot, by redeeming from a mortgage sale, invest himself with an indefeasible title to the common property, conceded that a cotenant may at
forced sale buy tbe estate and thereby become the owner in severalty, and appellant notes the fact that M. M. Williams did not redeem from a mortgage sale, but became the purchaser at a forced sale. But in inglis v. Webb, supra, there was a balance of purchase money due from land purchased for two persons. The court said they occupied in effect the position of two mortgagor-tenants in common of the mortgaged land, and held that when one cotenant paid the balance of the purchase price, taking conveyance to himself, his payment was no more than the removal of an incumbrance on the common property which inured to the benefit of his cotenant to the extent of his interest. In the present case, Williams, the purchaser at foreclosure, and his cotenants were asserting no hostile claims against each other prior to the foreclosure sale. They claimed title from a common source. The obligation to pay off the mortgage affected the title to the property when it passed by inheritance to said Williams and his coheirs; it was as much his duty as theirs to pay it off, and it would be inequitable to permit him to take advantage of the common default, and so acquire the title of his cotenants at a foreclosure sale. Shelby v. Rhodes, 105 Miss. 255, 62 So. 232, Ann. Cas. 1916D, note p. 1308. Our opinion then is that, for aught appearing, Williams purchased the property for his own and the benefit of his cotenants to the extent of their respective interests, .they became tenants in common, and that his possession became adverse to his cotenants only when, if ever, it amounted to an actual ouster of them, that is, a repudiation of their claims brought home to their knowledge. Ashford v. Ashford, 136 Ala. 637, 34 So. 10, 96 Am. St. Rep. 82; Oliver v. Williams, 163 Ala. 383, 50 So. 937.
The inference is that M. M. Williams remained in possession after he caused this land to be set apart to the minor children of his deceased wife, but there was nothing to indicate a claim of exclusive title in himself until he undertook to convey to his second wife in 1912, less than ten years prior to the filing of the bill in this cause. In the meantime he had caused the will of his first wife to be probated; but that gave no unequivocal notice of his claim in severalty because, for one reason, at least, the will simply made him the general devisee and legatee of testatrix, this property not being described. Apropos of this situation we may quote.from the opinion in Ashford v. Ashford, supra:
“Again, if he took possession as administrator, or at any time held possession in that capacity, and while in possession under that claim of right, he actually passed the possession oyer to his wife, but continued as before to reside on the land, and there were no visible marks of any change of possession from him to his wife, and no repudiation by him of the original character of Ms possession brought to the knowledge of the heirs, they would still be entitled to recover against him and against those now claiming under her, however long such possession of the wife may have continued before suit brought.”
The deed to appellant from her husband, if accompanied by an open change of possession, it may be conceded, would have put the statute of adverse possession in motion; but there was no such change and, moreover, the deed was executed within 10 years before, this bill was filed. Appellees were not barred of their rights nor were any special circumstances shown upon which to base a finding of laches.
Our conclusion is that the decree of the trial court should be affirmed.
Affirmed.
ANDERSON, O. J., and GARDNER and MILLER, JJ., concur.