Under the evidence in the record, the case is ruled by the sound, logical pronouncement in Tillis v. Dean, 118 Ala. 645,23 So. 804, decided in 1898. There was no disagreement to its doctrine among the exceptionally able justices forming the court's judgment. The homestead exemption statutes have not been since so changed as to modify or to avoid its doctrine. It is well settled, and is so conceded in brief for appellant, that the voluntary sale of land constituting, as here, the homestead effects to convert the real estate into personalty, whereupon the homestead exemption is waived and lost. In Giddens v. Williamson, 65 Ala. 439, 441, 442, it was said:
"Even though the real estate, sold by appellee to Rogers, may have been his homestead, and, as such, exempted from subjection to legal process — a question which need not here be decided — when it was sold, and converted into money, by the voluntary act of the owner, and not by legal compulsion, the proceeds, or purchase money, was not necessarily exempt. The homestead exemption was thereby waived and gone, and did not follow the money. As was said in Scott v. Brigham, 27 Vt. 561: 'Though a man's last cow is not subject to attachment, yet, if he sells it on credit, the vendee may be trusteed' — i. e., by garnishment. Andrews v. Rowan, 28 How. Prac. 128; Wygant v. Smith, 2 Lans. 185; Friedlander v. Mahoney, 31 Iowa, 315; Thompson on Homestead Ex. §§ 745, 746. It may be otherwise, however, where the sale or conversion is involuntary, or by compulsion under legal process."
No statute has been enacted since Giddens v. Williamson, supra, was decided in 1880, that has altered the rule of that decision. There is no statute making the proceeds of a voluntary sale of an exempt homestead subject to exemption as or for a homestead. On the contrary, the homestead exemption statutes have been three times readopted without any indication of legislative purpose to avoid the rule of Giddens v. Williamson. Upon the effectual execution, by Sowell and his wife, of the conveyance of the land constituting the homestead, and its delivery to Foshee and the grantee's payment of the purchase price, the homestead exemption theretofore existing immediately ceased and was lost. Sowell, defendant in the judgment, had waived any exemption of personal property in the instrument he had given the plaintiffs, appellees. To proceed upon any other premise in the adjudication of the rights of these parties is to extend the homestead exemption statutes to a subject-matter not within their purview, viz. the proceeds of a voluntary sale of real estate theretofore exempt as a homestead. Giddens v. Williamson, supra.
According to the undisputed evidence there was a voluntary sale of the homestead to D. R. Foshee for a consideration of $2,000 which was paid to Sowell through a check from D. R. Foshee to the People's Bank of Red Level, Robert Foshee, cashier of the bank (a different man from the grantee, D. R. Foshee), accepting the check; paying off Sowell's two mortgages of something over $900; and placing $1,000 to the credit of Sowell's wife, the cashier having suggested this procedure following the statement by Sowell that his wife would not sign the deed to D. R. Foshee unless this sum was applied to buying another home. With reference to an exempt homestead a wife's only power is to veto disposition thereof by withholding her consent, expressed as the statute required. As a homestead she has no interest or estate in the land. Hence, so far as Sowell's exempt homestead was concerned, no consideration whatever supported his delivery of the $1,000 of the proceeds to his wife; and his act in that regard operated as a gift only, as was well decided in Tillis v. Dean, 118 Ala. 645,23 So. 804. The fact that the process employed was not a manual reception of the money by Sowell from the grantee and then Sowell's delivery of that money to his wife did not avoid the effect of the stated rules of established law. The law determines rights by reference to the substance, not the shadow.
The garnishee's cashier, testifying as a witness, stated:
"At the time this writ of garnishment was served on me on the 16th of November, the whole $1,000 was there (meaning to the credit of Sowell's wife on the bank's books), and it had not been checked out."
This evidence was undisputed. Payment after writ of garnishment served is vain. Fowler v. Williamson, 52 Ala. 16,18, 19. In the circumstances disclosed the proper practice for this garnishee to have pursued was *Page 438 to have suggested Mrs. Sowell as claimant. Fowler v. Williamson, 52 Ala. 16, 18, 19. In consequence of the admission thus made, the plaintiffs were entitled to general affirmative instruction in their favor; unless consideration for the transmission of the $1,000 to Mrs. Sowell was afforded by her relinquishment of her inchoate dower right. If she had dower right in this land, it was conveyed by the deed to D. R. Foshee. Did Sowell's wife have a right to inchoate dower in this real estate? The undisputed evidence shows that before its conveyance to Foshee this land was impressed with the character of an exempt homestead. Its area was less than 160 acres, and its value did not exceed $2,000. Code, §§ 4160, 4196, 4198. Under our present statutory homestead system, particularly section 4198, the existence of any dower right in an exempt homestead which is, as here, within the maximum limits of an exempt homestead, would be incompatible with the homestead interest. Code, § 4198, provides:
"When all real estate of decedent set apart as homestead, title vests absolutely. When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title of such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not; but the title to the homestead shall not vest absolutely in them as against the other heirs of decedent until it is so set apart and until it is judicially determined that it is all the real estate owned by the decedent, and that it is not of greater value than two thousand dollars; but as against the creditors of decedent, the title of the homestead will be presumed to be absolute until it is judicially determined that it is not all of the real estate left by decedent, and that it is of greater value than two thousand dollars, and the homestead secured hereby shall be held and governed as in section 4196 (2069)."
So far as creditors are concerned, the effect of this statute is, as it avows, to invest the widow and any minor children of the decedent with the legal title to the homestead if it constitutes all of the real estate owned by the decedent. In this case there is no evidence whatever that Sowell has any children, much less minor children. According to this record, if Sowell had died possessed of the homestead — instead of conveying it to D. R. Foshee as was effectually done — it is manifest his widow would not have been entitled to dower in the land constituting the homestead; so for the reason that she would have succeeded, as a statutory heir (Code, § 4198), to the legal title to the entire premises, consisting, as it did, of all the real estate owned by Sowell, not exceeding 160 acres in area and in value not exceeding $2,000. Manifestly, dower cannot exist in land owned by the asserted doweress herself; and such would have been Mrs. Sowell's status with respect to this land in the event supposed. If she would not have been dowable in this homestead area — in the event of Sowell's death owning it — it would seem to be absolutely certain that she had no inchoate right of dower therein. The existence of an inchoate right of dower in lands in which there could be no dower consummated upon the husband's death is inconceivable. The cases of Chisolm v. Chisolm, 41 Ala. 327, Jordan v. Strickland, 42 Ala. 315, and McCuan v. Turrentine, 48 Ala. 68, involved a fundamentally different statutory system in which the material provisions of the present Code, § 4198 (quoted ante) find no counterpart. Those cases are therefore without application to the statutory status now prevailing. Maples on Homestead Exemptions, p. 614 et seq.; and Thompson's work on the same subject, sections 555, 556, treat the general inquiry; but neither of these authors considers, any more than did this court in the cases cited, the effect of the provisions of Code, § 4198, in constituting, in the circumstances therein specified, the widow as a statutory heir of her deceased husband in the homestead area. And it is equally manifest that a widow could not successfully assert against minor children a right to dower in a homestead in which, with her, minor children of the deceased owner were joint owners with the widow. Having no inchoate right of dower in the land (homestead), so effectually conveyed to D. R. Foshee, there was on that account no consideration for the $1,000 passing from Sowell to his wife. It was, as against his creditors, a gift merely; as was well decided in Tillis v. Dean, supra.
But even if this view was entirely ignored, there is in the record no evidence that Mrs. Sowell had the remotest idea that she was bargaining to anyone an inchoate right of dower in this land. All the testimony shows, or tended to show, is that she would not sign the deed to D. R. Foshee unless her husband would give her $1,000 of the proceeds with which to buy another "home." That this part of the proceeds was either promised or given to her as a consideration for her act in joining in the conveyance of the homestead to D. R. Foshee is not at all supported by the evidence. D. R. Foshee is not shown to have had any negotiation or dealing with Mrs. Sowell, nor is he shown to have had any intimation that she had exacted the stated promise of her husband, or that she would not sign the deed unless that promise was made to her. Another Foshee, the cashier, was so advised.
In the writer's opinion the judgment is not affected with error. *Page 439