Barrow and Wiggins brought suit against W. E. Sowell and W. F. Sowell on a promissory note given by them, waiving exemptions as to personal property. There was a judgment by default, damages assessed at $348, and judgment was rendered against the defendants therefor, with waiver of exemptions as to personal property.
While that suit was pending and before judgment was rendered, the plaintiffs in aid thereof obtained a writ of garnishment against the People's Bank of Red Level for it to answer whether it was indebted, etc., to the defendant W. E. Sowell. The garnishee, the bank, answered under oath that it was not indebted to the defendant W. E. Sowell. This answer was contested by the plaintiffs, and thereupon an issue was made up under the direction of the court, in which the plaintiffs alleged in what respect the answer was untrue. Section 4325, Code 1907.
The plaintiffs contested the answer of the garnishee on the grounds that the defendant W. E. Sowell, while indebted to them as averred in the complaint, deposited with the garnishee in the name of his wife $1,000, which was his and not his wife's property; that it had not been paid out by the garnishee when the writ was served on it, and this money was deposited in her name as a mere subterfuge, or for the purpose of hindering, delaying, or defrauding plaintiffs in the collection of their debt; and plaintiffs also allege in another ground of contest that the deposit of that sum in his wife's name was without consideration, and a mere gift from him to her, and was void as to plaintiff's debt.
The garnishee took issue on those grounds of contest; and also replied specially to each that it was in the general banking business, and the entire deposit, before making its answer to the writ of garnishment was paid out by it on checks of the wife without any notice or knowledge that the money did not belong to her or that it was deposited by the defendant in her name as a mere subterfuge or with intent to hinder, delay, or defraud plaintiffs in collecting their debt.
The court gave the general affirmative charge with hypothesis in favor of plaintiffs, and refused to give a similar charge in favor of the garnishee. There was a verdict by the jury in favor of the plaintiffs, judgment thereon by the court, and from it the garnishee appeals.
The giving and refusing by the court of these two charges are 2 of the 51 errors assigned by the garnishee.
The following evidence was undisputed in this case: The defendants owed plaintiffs $348 on March 6, 1922. This debt was contracted by the defendants as evidenced by a note given by them, waiving exemptions as to personal property, on December 5, 1919. Suit was filed thereon by plaintiffs, and garnishment in aid of the pending suit was sued out on November 16, 1921, and the writ of garnishment was served on the garnishee on November 10, 1921. Judgment was rendered by the court in favor of plaintiffs and against the defendants on March 6, 1922, for $348 debt and $11.15 costs. This judgment contained a waiver of exemptions as to personal property by each defendant.
The defendant W. E. Sowell owned 79 acres of land in the county. It was all the real estate owned by him. He and his wife were citizens of Alabama, and had resided on this land for years as their homestead. It was used and occupied by them as a homestead when the debt of plaintiff was contracted, and until it was sold and conveyed to Foshee by them, and its value was $2,000
There were two mortgages on this land given by W. E. Sowell and his wife. Both mortgages were due. One was given to George M. Forman Co., which, with interest, amounted to $607; and the other was given to the garnishee, which, with interest, amounted to $323.31.
On November 15, 1921, W. E. Sowell contracted to sell the homestead, 79 acres, to D. R. Foshee for $2,000. His wife refused to sign the deed unless W. E. Sowell would consent for $1,000 of the purchase price to go to her to buy another home. He agreed for her to have one-half of the proceeds of the sale before she would consent to and before she executed the deed, and then she joined with him in conveying the homestead of D. R. Foshee. D. R. Foshee paid the purchase price by giving his check to the garnishee for $2,000 drawn on the garnishee, payable to the garnishee, dated November 15, 1921, and the garnishee paid out the $2,000, as follows: $323.31 to itself to satisfy its mortgage on the land; $607 to George M. Forman Co. to satisfy their mortgage on the land; and paid in cash to W. E. Sowell, the defendant, $69.69; and deposited in its bank to the credit of said Mrs. W. F. Sowell the sum of $1,000. None of the proceeds of *Page 435 the sale of the 79 acres was paid to or went into the actual possession of the defendant W. E. Sowell, except the $69.69. The $1,000 was deposited to the credit of Mrs. Sowell as she directed. On November 21, 1921, she purchased another homestead and drew her check on the garnishee for $700 to pay for it, and on December 1, 1921, she drew by check out of the bank $50, and on December 9, 1921, she drew by her check out of the bank $250, the balance due her.
The defendant W. E. Sowell and his wife were and are resident citizens of Alabama. This was their homestead. It was occupied by them as such until it was sold and conveyed to Foshee. It did not exceed in area 160 acres, nor in value $2,000. It was exempt from levy and sale under execution for the debt of plaintiffs during his life and occupancy, and during the life of the widow, if she survived the husband, and minority of the children. Section 4160, Code 1907.
Mrs. Sowell owned no title or interest in the homestead during the life of the husband that she could sell; but he could not alienate it without her consent, expressed as the statute requires. Section 4161, Code. Any conveyance made by him to Foshee would have been void without her voluntary signature and assent in the manner required by section 4161 of the Code of 1907. She as his wife had the right to occupy it as a homestead with him during his life. Winkles v. Powell,173 Ala. 51, 55 So. 536. She under certain conditions mentioned in the statute, section 4190, had the right during his life to claim it as a homestead, exempt from the payment of his debts. If she survived him, she had the right to occupy it until her death. Sections 4160 and 4196, Code 1907. If she survived him, then she could have retained the homestead until it was ascertained whether his estate was solvent or insolvent, and if it was insolvent, then the title to the homestead would vest in her, the widow, and the minor child or children, if any, absolutely. Section 4196. If she survived him, and this 79 acres constituted all the real estate owned in this state by him at his death, and it was set apart as a homestead to the widow and minor child or children, or either, then the title to such homestead would vest absolutely in them. Section 4198, Code 1907. If they had abandoned it as a homestead, and she had survived him, then she would own a dower interest in it under section 3812, unless deprived of it in whole or in part by her separate estate, if any, under section 3814, Code 1907. Winkles v. Powell, 173 Ala. 46-51, 55 So. 536, W. E. Sowell, the husband, was seized in fee of this 79 acres of land during his marriage to this wife; and under section 3812 of the Code of 1907 his wife had a right of dower in it.
Under the undisputed evidence it was used by them until sold as a homestead, and its value was $2,000, and its area less than 160 acres. Under the undisputed evidence, she had a homestead interest in it. The wife, Mrs. Sowell, had a right of dower in and a homestead interest in this land before and when they conveyed it to Foshee. By their deed to Foshee she conveyed to him both of these rights or interests. Were they valuable, either or both of them? Were they or either of them a valuable consideration to support and sustain the transfer to her by her husband of the $1,000 of the purchase money for her executing the conveyance to Foshee of the land? Could the plaintiffs creditors of her husband, legally complain at her receiving the $1,000 for her signing the conveyance? These are questions presented by this record for us to answer.
In Gordon Rankin Co. v. Tweedy, 71 Ala. 210, this court wrote:
"The release by a married woman of her inchoate or contingent right of dower in lands owned by her husband, of which she is lawfully dowable, may constitute a valuable consideration for the execution of a deed by him to her. And the same is true, whether the release be made contemporaneously with the deed, or pursuant to a preceding agreement."
See, also, Hoot v. Sorrel, 11 Ala. 386; Bump on Fraud. Con. 303; Bk. of U.S. v. Lee, 13 Pet. 107.
"Yet such a contract must be reasonable and free from fraud in order to be sustained in equity, and should be especially scrutinized when made to a wife by a husband who is insolvent or in failing circumstances." Keel v. Larkin, 83 Ala. 142,3 So. 296, 3 Am. St. Rep. 702.
In 20 Cyc. 523, § b, headnotes 41, 42, and 43, we find this general rule:
"The release by a wife of her right of dower in the lands of her husband is a sufficient consideration to support a conveyance or transfer to her of property of her husband; and this is true whether the release be made contemporaneously with the conveyance or transfer or pursuant to a preceding agreement."
In 12 R. C. L. p. 515, § 45, headnote 6, we find:
"The relinquishment of the wife's right of dower is a good consideration for such a settlement as against creditors of the husband, to the extent of the value of the dower."
The wife is more vitally interested in fact and under the statutes as we have hereinbefore shown in the homestead of her husband than in her dower interest in the lands of her husband. If the rights of dower in the husband's land are valuable during his life, then the rights of the wife in the homestead of her husband are valuable during his life. She is entitled to use and occupy the home with her husband during his life (Witherington v. Mason, 86 Ala. 349, 5 So. 679, *Page 436 11 Am. St. Rep. 41; Winkles v. Powell, 173 Ala. 51,55 So. 536) and after his death to use and occupy it during her life. Under certain contingencies mentioned in the statutes she may become the absolute owner of the homestead of the husband after his death. Sections 4227, 4196 and 4198, Code 1907. Her dower rights in his lands give her no such privilege during his life. She can be deprived of her dower in his lands, in whole or in part, by the value of her separate estate (section 3814), but her separate estate has no effect on her homestead rights. The husband may sell and convey his lands in which she is entitled to a dower right, and the conveyance will be valid as to his interest, but not as to her dower rights without her signature and consent. Winkles v. Powell, 173 Ala. 46, 51,55 So. 536. But the husband cannot sell and convey the homestead without the voluntary signature and assent of his wife as the statute directs; if he does, the conveyance is void, both as to his interest and her rights therein. Section 205, Const. 1901; section 4161, Code 1907; Slappy v. Hanners,137 Ala. 199, 33 So. 900.
In 20 Cyc. 524, e, we find this general rule:
"A release by a wife of her homestead right is such a consideration as will support a conveyance or transfer of property to her by her husband."
In 12 R. C. L. p. 516, headnotes 10 and 11, we find this general rule:
"The release by a wife of her right in a homestead is a good consideration for money paid to her, or a conveyance made to her, for a husband may always convey to his wife property exempt from execution."
In Fiedler v. Howard, 99 Wis. 388, 75 N.W. 163, 67 Am. St. Rep. 865, we quote:
"The transaction was in no sense a gift to the wife. The release by the wife of her dower and homestead interest was a good consideration to support this arrangement. See Allen v. Perry, 56 Wis. 178."
The homestead rights of the wife in the home of the husband is valuable. She can veto its sale. She can occupy it jointly with him during his life. If he dies first, she can occupy it during her life.
In Kennedy v. First Nat. Bk. of Tuscaloosa, 107 Ala. 181,18 So. 397, 36 L.R.A. 308, this court wrote:
"It resolves itself into this: That as to exempt property there are within the meaning of the statute of frauds, no creditors. Statutes creating exemptions were not designed to imprison the debtor in his homestead, nor to fetter the transfer of his chattels."
Here the homestead was exempt, and it was sold to pay two mortgages on it; $1,000 of the purchase money was delivered to the wife to secure her signature to the conveyance and which was to be used by her in buying another home; and within 10 days after the execution of the conveyance she invested $700 of the $1,000 in another home.
In Sanders v. Wallace, 114 Ala. 263, 21 So. 948, this court wrote:
"Dower attaches upon marriage to every estate of inheritance of which the husband is seized during coverture. It is inchoate until death. Neither the husband nor his creditor can deprive her of this right, against her consent."
The wife of Sowell had a dower interest, subject to the two mortgages, in this 79 acres of land. It was valuable. Neither the husband nor the plaintiffs, his creditors, could deprive her of this right in it without her consent. The husband was seized in fee of this 79 acres of land during his marriage; and under section 3812 of the Code of 1907, the wife had a dower right as well as under the evidence a homestead interest in it. As it was exempt as a homestead from the debt of the plaintiffs, they could not complain at the conveyance of it or at the amount of the purchase money under agreement allowed the wife for her dower interest or her homestead interest or for both interests. Wright v. Smith, 66 Ala. 514; Kennedy v. First Nat. Bk., 107 Ala. 181, 18 So. 396, 36 L.R.A. 308; Cox v. Bham. D. G. Co., 125 Ala. 320, 28 So. 456, 82 Am. St. Rep. 238. The transfer of the $1,000 to the wife is based on a valuable consideration to pay for her voluntary signature and assent to the conveyance of the 79 acres of land by her husband to Foshee; she by the deed conveyed her dower rights and homestead interest in the property to Foshee, and this was valuable. It was under the evidence in no sense a gift to her by her husband. Gordon, Rankin Co. v. Tweedy, 71 Ala. 210; Minge v. Green, 176 Ala. 353, 58 So. 381; Weil v. Hill,193 Ala. 417, 69 So. 438; and authorities supra; Taylor v. Taylor, 207 Ala. 217, 92 So. 109.
It is true in Tillis v. Dean, 118 Ala. 648, 23 So. 804, it was held that the transfer of the horse to the wife by the husband under agreement to secure her signature to the deed conveying a part of the homestead to another, for the horse, was without consideration; and that —
"She acquired no title to or interest in the horse, by virtue of having given or parted with anything valuable for it, and the only interest she acquired in the animal was by way of gift from her husband."
This is contrary to the great weight of the authorities on that subject; it is in conflict with the letter and spirit of many decisions of this court, and the case of Tillis v. Dean,118 Ala. 648, 23 So. 804, is hereby expressly overruled to this extent.
This $1,000 under the agreement and the undisputed evidence in this case was the *Page 437 property of Mrs. Sowell, and not the property of the defendant W. E. Sowell when the writ of garnishment was issued and served on the People's Bank of Red Level, the garnishee. This $1,000 of Mrs. Sowell was not subject to that writ of garnishment.
The court erred in giving the general affirmative charge with hypothesis in favor of plaintiffs, requested in writing by them. The general affirmative charge with hypothesis, requested in writing in favor of the garnishee, should have been given by the court.
There is no necessity for passing on the other errors assigned. They will hardly arise on another trial; if they do, they will be in a different form.
For the errors mentioned the judgment must be reversed, and the cause remanded.
Reversed and remanded.
SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., concur.
ANDERSON, C. J., and McCLELLAN, J., dissent.