Statutory ejectment, instituted September 11, 1918, by appellees against appellants Beaty and Thomas; the latter being the tenant of the former. As the result of findings of fact by the jury, plaintiffs were given judgment for the land described in the complaint. The appellees, plaintiffs, are among the heirs at law of R. J. Washam, deceased, who died in 1917.
In February, 1908, Teel conveyed the land in question, by warranty deed, for a valuable consideration, to R. J. Washam. R. J. Washam and his wife, Francis A., resided on this land. It was their homestead on the 7th day of September, 1915, when for "$1 and other valuable considerations" a warranty deed thereto to the appellant Beaty was undertaken to be executed. It appears that this land did not exceed 160 acres in area, and that its value was less than $2,000.
The plaintiffs asserted, and the jury so concluded, that at the time the conveyance of this homestead to Beaty was made, Francis A. Washam, the wife of R. J. Washam, was mentally incompetent to give her "voluntary signature and assent" (Code, § 4161) to the alienation of the homestead. This court has long since established, in Thompson v. Mortgage Co., 110 Ala. 400,18 So. 315, 55 Am. St. Rep. 29, the doctrine that an attempted conveyance of the homestead to a third person is a nullity, wholly void, if the wife is insane at the time her "voluntary signature and assent" are requisite to the validity of the instrument. The defendant would avoid the result attending the statute and the doctrine illustrated in Thompson's Case, supra, by recourse to the provisions of Code, §§ 3347, 3348. These sections read:
3347. "Whenever any person shall in good faith, and for a valuable consideration, purchase real estate from an insane person without notice of such insanity, such contract and conveyance shall not be void, but such insane person may recover from the vendee or those claiming under him, the difference between the market value of such real estate at the time of the sale and the price paid therefor, with interest thereon, and shall have a lien on such real estate to secure the same, and the purchasers from such vendee, without notice of the insanity of the original vendor, shall be protected in like manner and have the benefits of this section."
3348. "Except as provided in the preceding section, all contracts of an insane person are void, but he and his estate shall be liable for necessaries furnished him which may be recovered upon the same proof and upon the same conditions as if furnished to an infant."
"The title to the property [a homestead owned by the husband] is" in the husband only, and so is the right of homestead; and hence in a conveyance by the husband of the homestead, owned by him, the wife is not required to be or to become a grantor in order to satisfy the law's exaction that her "voluntary signature and assent" to the conveyance of such homestead is necessary to its conveyance; she having no property in the homestead owned by the husband. Dooley v. Villalonga, 61 Ala. 129,132; Vancleave v. Wilson, 73 Ala. 387, 389, among others.
Code, § 3347, quoted above, has reference alone to an insane grantor, not to the insane wife of the grantor, who, as stated, has no such property or estate in the homestead (owned by the husband) as constitutes her a grantor in the premises. The provisions of this statute cannot, therefore, avail this appellant; and if, as the jury concluded, R. J. Washam's wife was insane at the time this conveyance to Beaty was undertaken to be made, the instrument was wholly void, just as if it had not been executed at all. After this entirely ineffectual effort to convey the homestead to Beaty was made, Washam and his wife moved off the land, and Beaty went into exclusive possession; and neither R. J. Washam nor his wife occupied the *Page 94 premises at the time of the death of either of them in 1917 and 1918, respectively.
Since actual occupancy, with some statutory exceptions not presently pertinent, is essential to characterize land as a homestead; since a resident of this state cannot have two distinct homesteads under our laws (Hodges v. Hodges, 201 Ala. 215,216, 77 So. 741, citing earlier decisions; 8 Mich. Ala. Dig. pp. 88, 89; Fuller v. Amer. Supply Co., 185 Ala. 512, 514,516, 64 So. 549, among others); and since there does not appear to have been any effective setting apart of this area in lieu of homestead — the plaintiffs (appellees) became invested with the legal title held by R. J. Washam at the time of his death, and were hence entitled to maintain ejectment against Beaty and his tenant Thomas to recover the land.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.