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(Yates v. Adams.]

HEAD, J.-The views of the other members of the court upon the validity of the claim of homestead asserted, in this case, being the contrary of those of the writer, the following discussion of the question against the validity of the claim, indicates the opinion of the writer only. The other members of the court hold that A. A. Adams was entitled to the exemption claimed and such will be the decree of the court.

The case is a bill in equity to condemn proceeds of property alleged to have been fraudulently conveyed, in the possession of the alleged fraudulent grantee.

A. A. Adams being indebted to the complainant, and owing other debts, on May 26, 1890, conveyed to his wife, Carrie W. Adams, by deed, a lot of land on 13th street, in Birmingham, Ala., which he owned. The consideration recited in the deed was $3,000 in hand paid. There was, in fact, no valuable consideration at all. The property was, at that time, subject to the payment of Adams' debts. It was not, and had never been, his homestead. In July following, Adams and wife conveyed, by deed, one-half of this lot to James R. Adams for the recited consideration of $2,250, in hand, and about the same time James R. Adams and wife conveyed, by deed, to said Carrie W. Adams another lot, located in another part of the city known as South Highlands, for the recited consideration of $2,500. In fact, however, these conveyances were, respectively, made in consideration of each other, operating as an exchange of lots. To make up the difference between the estimated values of the two lots as denoted by the considerations recited, A. A. Adams transferred to James R. a half interest he owned in some lots in Calera, valued at $250. Very shortly after this exchange, Mrs. Adams erected a dwelling house on the lot obtained by her, at a cost of some $1,800, the money being raised by selling the other half of the 13th street lot for $800, and borrowing $1,000, which was secured by mortgage on the South Highlands lot. Upon completion of the house, in the latter part of 1890, she moved into it, as her home, and has since continuously occupied it as such, her husband living there with her.

The bill seeks to condemn this lot—the South Highlands lot-as being the proceeds of the 13th street property, voluntarily conveyed to Mrs. Adams, as aforesaid,

[Yates v. Adams.]

and the only resistance offered to the relief sought, is a claim of homestead exemption interposed by the husband, A. A. Adams, claiming that by virtue of his occupation of it, with his wife, as his dwelling place, which commenced on the completion of the house, before this bill was filed, and the fact, as he alleged and proved, that the property was not, at the hearing, worth as much as $2,000, after deducting the amount of the mortgage encumbrance, the principal of which was still unpaid, he was entitled to claim and hold the same under the homestead exemption law.

We think, upon principles recognized and established by this court, and a proper view of the marital relation, so far as concerns the separate property of the wife under present statutes, the claim of exemption can not be allowed. The property was never impressed with a homestead character in favor of Adams. The lot he conveyed to Mrs. Adams was not his homestead and had never been. It was subject to the claim of his creditors. He conveyed it vountarily to Mrs. Adams, in that plight, and she took it as upon a trust in invitum for the use of those creditors if they should see proper to enforce the trust. The right of the creditors to proceed in equity to condemn the estate, grew out of, and was created by, the execution of the constructively fraudulent deed; was coincident with such execution, and irrevocable. Nothing that either the grantor or grantee could afterwards do could affect or impair the rights of the creditors so created and fixed by the conveyance, except to sell to a bona fide purchaser for value without notice of the character of the consideration. These principles are to be found stated in Lockard v. Nash, 64 Ala. 385, where BRICKELL, C. J., speaking for the court, in reference to a gift by a debtor to his son, said: “An existing creditor can compel the application of the money received to the satisfaction of the donor's debt. The right of the creditor does not spring out of any contract between him and the donee. It arises by operation of law, upon the broad principle that justice must precede generosity, and that the claims of creditors, who have parted with a valuable consideration, must be satisfied before the claims of others, resting merely on affection or generosity, can be recognized. The money derived from the sale of the cotton was money held by the donee

[Yates v. Adams.]

in trust for existing creditors. The liability of applying it to their satisfaction arose, and was complete, on the day it was received. The trust was implied, or constructive; it was created by the law; it was imposed on the donee in invitum.And he went on to state that it was a trust to which the statute of limitations was applicable.

The same principle was stated, with more elaboration, in Dickinson v. National Bank of the Republic, 98 Ala. 516. We there held that the fraudulent grantee is construed to be a trustee for creditors, and as such, responsible for his acts in disposing of the property conveyed to him. We held, that if he had parted with the property, he must account for its value, which liability could be enforced by personal decree and execution; and that the proceeds of the property may be followed into any property in which they have been invested, so far as they can be traced. As we there stated, the rules laid down are consonant with the authorities generally, and meet our approval. They must be regarded as the established doctrine of this court. See also the reasoning and authorities stated in Kennedy v. First National Bank, 107 Ala. 170, where it was held that a grantor in a fraudulent conveyance of property, in which the right of homestead existed at the time of the conveyance, was entitled to assert the homestead right in a suit by cred itors to condemn the property.

Adams, having no homestead right in the property, at the time of his conveyance (which under the authority of Kennedy's Case, supra, might have given him the right to claim the exemption he now claims), could not, and, indeed, did not attempt to, acquire one thereafter. Mrs. Adams, being as against him, the absolute owner, converted the property into other property, in which he had no right, title or interest, nor legal or equitable right of possession or enjoyment whatever; and it goes without saying, that in such property, he could have no homestead right under the statutes of this State.

His occupancy of it as a dwelling place, with his wife, was not by virtue of any proprietary interest, of any character, in him, but, in a legal sense, by the mere permission or sufferance of his wife. By such occupancy he acquired no more right of homestead, under our exemption laws, than if he had, by the permission of the owner,

[Lanford v. Lee.]

lived with, and in the house of, a stranger. Suppose Mrs. Adams had exchanged the lot conveyed to her by her husband for the furniture with which her house was supplied, the use and benefit of which 'her husband enjoyed by living there with her, what would be said of a claim on his part to have $2,000 worth of the furniture set apart to him as exempt? The present case is precisely the same in principle.

The distinction must be borne in mind between this case and those in which the grantor in the fraudulent conveyance had a right of homestead, at the time of the conveyance, by reason of his occupancy of the property as such. If he had such right, then he may claim homestead when the conveyance is assailed by creditors; if he had no such right; if the property was then subject to the claims of creditors, the conveyance was, necessarily, void in toto as against creditors, and there could be no homestead right for him to assert.

Following the views of the other members of the court, the decree of the city court is affirmed.

Affirmed.

Lanford v. Lee.

119 248 129 618

Assumpsit for Money Had and Received to Recover Ex

emption of Jinor Child.

1. The fact of minority gives right to exemption.—Under Code of

1896, 82073, granting an exemption of personal property in favor of the widow and minor children of a decedent, it is minority, the condition of being under the age of twenty-one years, and that alone, without regard to any other condition or relation, upon which the right of the child to share in the exemption depends. A married daughter, over eighteen but under twenty-one years of age, is a minor child, within the

meaning of the statute, entitled to share in the exemption. 2. A widow's right to receive exemption, impressed with a trust in

favor of children; title held in common.-When the exemp. tion is set apart, if there be a widow, the exemption must be delivered to her, and to her only; but she takes and holds it, impressed with the trust, that she will “employ or use it in maintenance of herself and minor children;" she cannot use or appropriate it exclusively to her own benefit; she has in it

[Lanford v. Lee.]

no exclusive title or interest; her title and interest is in common with the title or interest of the minor child or

children. 3. Family relation need not exist; child "leaving the familyenti

tled to share.—The widow and minor children are entitled to exemption, not as an incident to the relation of the family, but because of the status of widowhood and minority, and they are entitled to take and hold it, in the condition in which they are found. If the social relation of a family exists, there may be a dissolution of it by a child "leaving the family," and in that event the child leaving, takes in sev. eralty her share of the exemption remaining unconsumed; but if the family relation does not exist, the right of exemption is not lost, but the minor child or children have the rights they would have if the family relations existed, and

they were "leaving the family." 4. Assumpsit for money had and received; case at bar.-A testator

left surviving his widow who at the time of his death, was living separate from him without the State, and an only daughter, who was married, and over eighteen but under twenty-one years of age; on the selection of the widow an exemption of personal property was set apart for the benefit of herself and daughter, and on its delivery to the widow was converted into money amounting to one thousand dollars; no family relation existing between widow and daughter, the latter demanded one-half the money: Held, that on the refusal of the widow to pay, claiming the money as her own exclusively, it became at the election of the daughter, money had and received to her use, for the recovery of which she could maintain assumpsit.

APPEAL from Selma City Court.
Tried before Hon. JOHN W. MABRY.

The suit was brought by appellee immediately on her arrival at twenty-one years of age. The complaint contained two counts, the first, the common count in assumpsit for money had and received, and the second, a special count setting forth the facts in substance as stated in the opinion. The defendant filed a plea of the general issue to first count, and a demurrer to second count directed to its substance and sufficiency as a cause of action. The demurrer was overruled. The court, trying without a jury, rendered judgment for plaintiff. Appellant assigns as error the ruling on the demurrer and the rendition of judgment for plaintiff.

PITTS, PITTS & SAFFOLD, for appellant.—The appel

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