A branch of this litigation concerning the property here in controversy has previously been before this court (Thompson v. Miller, 204 Ala. 592, 85 So. 689), but we do not consider that the question there determined has any important bearing upon this appeal.
This bill is by a remainderman to remove cloud and quiet the title to the lands therein described. His right to possession or any action for the recovery thereof is postponed until the termination of the outstanding life estate, and that he may maintain a bill, although out of possession, for a removal of the cloud upon his title as such remainder man is well established by all the authorities in this jurisdiction. Dallas Comp. Co. v. Smith, 190 Ala. 423, 67 So. 289; Winter v. Powell, 180 Ala. 425, 61 So. 96; Lansden v. Bone, 90 Ala. 446,8 So. 65.
The bill alleges that the respondent Millie Miller, as the widow of James Miller, deceased, was vested with a life estate in and to this homestead, and there is no objection to the bill upon the ground that the averment is but a conclusion of the pleader. The argument seems to be, however, that the language of the bill is inconsistent, in that it discloses that respondent Millie Miller has conveyed this homestead by warranty deed to the other respondents to the bill, and that by such alienation to third persons she has abandoned and lost her homestead rights — citing Chavers v. Mayo, 202 Ala. 128,79 So. 594. In that case, however, the lands involved consisted of a tract of 240 acres, much in excess in area allowed as exempt, and no selection or allotment of any homestead to the widow or minor children, and the court, under these circumstances, considered applicable the rule stated in Gilbert v. Pinkston, 167 Ala. 490, 52 So. 442, 140 Am. St. Rep. 89, and the other authorities therein cited in regard to the effect of an alienation upon such homestead right. In the instant case a different situation is presented. The decedent left a homestead, less in area than that allowed as exempt; and while the bill does not specifically aver that the value at the time of his death did not exceed in amount that allowed, yet there was no specific demurrer taking this point, and in view of the averment above referred to, that there was vested in the widow a life estate, it should be so accepted that such homestead was left or was subject to exemption to the widow for life, there being no children. Under these circumstances we are of the opinion an allotment of the homestead does not appear to have been a condition precedent to the vesting of a life estate in the widow, as distinguished from a mere right of occupancy considered in the Chavers Case.
What was said in the recent case of Johns v. Cannon, 199 Ala. 138,74 So. 42, supports the conclusion here reached, although the precise question here determined was not there considered; but the underlying principle, in view of the changed statutory provision, is there discussed. Likewise, in support of this conclusion we note Tartt v. Negus, 127 Ala. 301,28 So. 713, and O'Rear v. Jackson, 124 Ala. 298,26 So. 944.
There is some insistence that Millie Miller, La Fayette Green, and Maggie Green are not proper parties respondent. The two latter respondents are alleged to have claimed some interest in the land under the deeds, and they are likewise shown to have joined in the execution of a warranty deed with Millie Miller purporting to convey a fee-simple title to the other respondents in the cause. They were at least proper parties, and the demurrer raising this point was properly overruled. 32 Cyc. 1348; Broughton v. Mitchell, 64 Ala. 210; 7 Mayf. Dig. 671.
We are of the opinion that the bill was not subject to any assignment of demurrer interposed, and that the decree of the court below should be affirmed.
Affirmed.
All the Justices concur. *Page 673