The original bill is for the sale of 80 acres of land for' distribution among the tenants in common, and is filed by complainant against her brothers and sisters, or their representatives in blood. The bill alleges that complainant owns an undivided seven-twelfths interest in the land, and that respondents own the remaining undivided five-twelfths. The respondents filed their answer and cross-bill, denying that complainant owned more than a one-sixth interest in the land, and setting forth the following facts with respect to the title thereof. The land in question was owned by one Lewis R. Powell in 1885, and was then occupied as a homestead by himself and wife, Sarah A. Powell, and their daughter, Annie E. Winkles, the complainant. In that year — 1885—said Powell charged his said wife with adultery, and abandoned her and their home, to which he never returned, and took up his abode elsewhere. In May, 1885, he filed a bill for divorce on the ground of adultery, and in November, 1885, a decree was rendered divorcing him from his said wife. In February, 1887, on appeal to the Supreme Court, this decree was reversed, and the bill of complaint dismissed. In the meantime, in January, 1886, *49Powell had married one Fannie Windsor, and, after the adverse decree of the Supreme Court, he procured the passage in February, 1889, of a legislative bill divorcing him from his wife, Sarah, validating his marriage with -Fannie Windsor, and legitimating the issue thereof. After this Powell and his new wife, the said Fannie, removed to Winston county, where he purchased 180 acres of land, which they resided on until his death in November, 1897, raising a family in the meanwhile. In May, 1891, said Powell and Fannie Windsor, as his alleged wife, executed a deed to certain parties conveying to them an undivided half interest in the lands described in the bill. In November, 1904, said grantees conveyed to Annie Winkles, the complainant, all their interest in said lands; and previously, in January, 1899, the said Sarah Powell executed a deed conveying said lands to complainant, after which, as before, the said Sarah and complainant continued to occupy the lands jointly until the former’s death, which occurred in February, 1906. The lands in suit were never worth in excess of $2,000; and the parties to this suit are all of the heirs of said Lewis Powell, represent ing six original shares. The foregoing facts are emboddied in an agreed statement of facts upon which the cause was tried. In this agreed statement is a recital that the respondents sued the complainant in ejectment for these same lands in September, 1906, and in October, 1907, recovered a judgment against her for a five-twelfths undivided interest, of which they were placed in possession.
The chancellor, disregarding the conveyances under which complainant claims, apportioned the ownership of the land in accordance with the original heirship of the parties, allowing complainant a one-sixth interest only; and he taxed her with one-half the costs of suit. *50His decree in. both of these particulars is assigned as erroneous.
1. The fact that in an ejectment suit these respondents recovered of complainant only a five-twelfths interest in these lands, even if every essential of an estoppel by judgment appeared (which is not the case), can avail the complainant nothing here, since she has nowhere pleaded it. This rule is inflexible. — Clark v. Johnson, 155 Ala. 648, 47 South. 82; Jones v. Peebles, 130 Ala. 269, 30 South. 564; Hall v. Henderson, 126 Ala. 490, 28 South. 531, 61 L. R. A. 621, 85 Am. St. Rep. 53. Properly pleaded and proved, the result would, it seems, have been otherwise. — Coleman v. Stewart, 170 Ala. 255, 53 South. 1020.
2. The legislative divorce granted to Lewis Powell, being violative of section 23 of article 4 of the Constitution of 1875, was an absolute nullity, and Sarah Powell continued to be his laAvful wife as long as he lived, his attempted marriage Avith another woman notwithstanding. — Jones v. Jones, 95 Ala. 443, 11 South. 11, 18 L. R. A. 93. Nor would it make any difference if it were acquiesced in and treated as valid by the lawful wife.
3. As surviving widow of Lewis Powell, Sarah Powell owned but a life estate in these lands, and her deed to complainant conveyed no more than that. There is nothing in the record to show that the widow ever claimed the lands adversely to her husband; and, if she had, her possession could not have become adverse since it was at all times rightful and lawful, and neither her husband nor his heirs could haA-e disturbed it.
4. It only remains to consider whether, under the conditions shown, Lewis Powell could make a valid deed to these lands Avithout the voluntary signature and assent of his lawful wife, Sarah. Undoubtedly, the law authorizes the husband to choose'and fix the domi*51cile of himself and wife and children; and, when he exercises this power, the wife’s refusal to accompany him and share with him the home of his selection is tantamount to an abandonment of him by her, and, if continued for the statutory period, becomes a ground of divorce against her. Of course, this power has its limitations and cannot be so exercised as to imperil the health or safety of the wife.
The wife has no estate in the homestead when the legal title is in the husband, and the only rights she has with respect thereto are the common-law right of occupancy jointly with the husband, and the statutory right of veto against its alienation, so long as it remains the family homestead. — Witherington v. Mason, 86 Ala. 349, 5 South. 679, 11 Am. St. Rep. 41.
It results from these principles that the husband may without the wife’s consent abandon the homestead, and by so doing deprive it of the privileges and free it from the restraints attached to it by law. It is clear, therefore, that had Powell simply abandoned his home in Marshall county, and acquired a home in Winston county, Avhich he invited his wife to share, her refusal to do so, and her continued occupancy of the former home, would not have preserved the homestead character of such former home, and he could have alienated it without her signature or assent, subject, of course, toiler inchoate right of dower. But the record shows that he permanently abandoned both his home and his family; and so far was he from desiring the further presence of his Avife that in less than a year he took another-woman and installed her in the new home which he acquired. In accordance with the spirit and purpose of our homestead laws, we are of the opinion that the husband could not- thus abandon the homestead occupied by himself and his wife; and, while she continued to oc*52eupy it as her home, and was excluded from his presence and his home elsewhere, thereby empower himself to convey it away without her lawfully expressed consent. And the principle of this view has been approved by the courts of many states. — 21 Cyc. 597; 95 Am. St. Rep. 936, note.
5. By section 2537, Code 1886, brought forward as section 4190, Code 1907, it is provided that when, among other things, the husband absconds or abandons his family, the wife shall be entitled to interpose any and all claims of homestead or other exemption which the husband could have interposed, conditioned on her intention to continue a resident of the state. While this statute does not in terms forbid alienation of the homestead by the husband without the wife’s consent during the period of his abandonment, it does plainly show a legislative intent to preserve the character and immunities of the homestead in favor of the dependent members of the family, in despite of its attempted abandonment by the husband. Such solicitude would be barren of the good results intended if the husband could nevertheless declare the homestead abandoned, and by his deed alone authorize any stranger to enter and expel his helpless family. Its policy and effect are therefore strongly confirmatory of our conclusion above announced.
It is strongly urged by counsel for appellant that in denying the power of the husband to alienate in this case we are not protecting the wife at all, but are in fact actually thwarting her wishes with respect to the disposition and beneficial enjoyment of this property, which she wished to go to her daughter, the complainant, as shown by the deed she made to her. But this is wholly apart from the question, which is solely upon the validity of her husband’s deed to strangers. If that *53deed was void when made — and we hold that it was — it could not he afterwards validated by the tacit or expressed approval of the wife not evidenced as the statute requires. Nor, indeed, would the result be different if the husband’s grantees had reconveyed to the wife instead of to her daughter, the complainant.
6. The apportionment of costs, especially in a case like this, rests in the sound discretion of the chancellor,, and will not be reviewed on appeal. — Kitchell v. Jackson, 71 Ala. 556.
There being no error in the record, the decree of the chancery court is affirmed.
Affirmed.
D'owdell, C. J., and Simpson, Anderson, Mayfield, and Sayre, JJ., concur. McClellan, J., dissents. Simpson, J.,holds that section 4190 of the Code is decisive of the question.