The bill and proof were insufficient under the statute to quiet title to real estate. Code, § 5443; Davis v. Daniels,204 Ala. 374, 85 So. 797. It is not averred and shown that complainants were in the peaceable possession of the land, actual or constructive, as distinguished from a disputed or "scrambling possession." Foy v. Barr, 145 Ala. 244, 39 So. 578; Carr v. Moore, 203 Ala. 223, 82 So. 473.
The foundation of complainants' claim or title to the land is upon an alleged mortgage, purporting to have been executed by George W. Burgin and others (not by his wife) to Nelson Burgin and Joe Hicks, the deceased husband of complainant Stella Hicks. The averment of the bill as to said Hicks is that since the date of the execution of said mortgage, on or about May 25, 1906, Joe Hicks has died, leaving Stella Hicks the sole owner of his interest in said debt (meaning the mortgage). This averment, and the proof or lack of it supporting the same, gave Stella Hicks no title or interest in the land. Code, § 3754, subd. 6. There was no allegation or proof that complainant Stella Hicks was ever at any time in possession of the land.
Under the phase of the bill seeking to show a superior title in Nelson Burgin and Stella Hicks under the mortgage by George W. Burgin to Nelson Burgin and Joe Hicks, and the averred reason that the land sought to be made the subject of the mortgage was, at the time of the execution of the same, the homestead of George W. Burgin, the proof fails, for that George W. Burgin testified that at the date of his execution of that mortgage (on or about May 25, 1906) he was living on the land with his first wife, Stella, and their children, and that she did not sign the mortgage. An examination of the mortgage exhibited discloses that such grantor in possession giving the mortgage, was not joined therein by the wife. Such a conveyance did not convey a homestead right or interest of the mortgagor to the grantees therein, Nelson Burgin and Joe Hicks. Code, § 4161; Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742. Where the lands sought to be conveyed were of less area and value than that allowed by law and were at the time of the attempted conveyance occupied as a homestead, and the attempted conveyance was signed by the husband alone, or the same is defectively executed by the wife, it has been declared to be a nullity. McGuire v. Van Pelt, 55 Ala. 344; Wallace v. Feibelman, 179 Ala. 589, 60 So. 290.
Respondent Miller and those holding under him sufficiently showed that they had derived title through a judgment against said George W. Burgin execution thereon, levy thereof, and a sale thereunder, which was averred by the bill admitted by the answer of respondents and shown by exhibits in evidence pertaining to same — the necessary requirements being in such a case "a judgment, execution, levy, and the sheriff's deed." *Page 317 Ware v. Bradford, 2 Ala. 676, 36 Am. Dec. 427; Love v. Powell,5 Ala. 58; Smith v. Houston, 16 Ala. 111, 114; Clark v. Spencer, 75 Ala. 49, 57. In the Clark-Spencer Case, supra, Mr. Justice Stone observed of a defendant in execution that if he "knowingly permit his property to be seized and sold, without interposing his claim to its exemption, he will be held to have thereby waived his right to claim, and would not be heard afterwards to complain. This rests on the principle that exemption is a privilege which may be waived, and is waived, if not properly asserted." Kennedy v. First Nat. Bank, 107 Ala. 170,18 So. 396, 36 L.R.A. 308; Autauga Bank. Tr. Co. v. Chambliss, 200 Ala. 87, 89, 75 So. 463; Lewis v. Lewis,201 Ala. 112, 77 So. 406; Cross v. Bank, 203 Ala. 561, 84 So. 267. Authorities to the effect that a creditor cannot impeach a sale of property that is exempt as a homestead (Fuller v. Whitlock, 99 Ala. 411, 13 So. 80; Pollak v. McNeil, 100 Ala. 203,13 So. 937; First Nat. Bank v. Browne, 128 Ala. 557,29 So. 552, 86 Am. St. Rep. 156) are without application to an attempt to convey land by an instrument that was void by reason of failure of statutory compliance.
The answer of respondents, by way of a cross-bill, sought affirmative relief, by praying for relief against the complainants, for cancellation of the alleged conveyance of date June 21, 1912, of George W. Burgin to Nelson Burgin and Stella Hicks and the two alleged mortgages set up by the bill, as clouds upon the title of respondent Miller and those holding under him, was sufficient to the controverted question, and under the evidence warranted the affirmative relief granted in the final decree.
The decree of the circuit court in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.