On consideration of the application for rehearing, the majority of the court are of the opinion that the application should be granted, and the judgment of reversal set aside and one of affirmance entered.
The following may be stated as some of the reasons which impel us to the conclusion now reached:
It is without dispute that the property in question was the homestead of W. F. Sparling; that he resided upon it, with his wife, Janet A. Lewis Sparling, the ward of appellee, for some time, and until about the year 1894 or 1895, when he abandoned his wife, his homestead, and the state, leaving his wife in the possession of the homestead; that there she remained until about the year 1900, when she became insane, and was so adjudicated, and committed to the state asylum, where ever since (or at least until the filing of this bill), she has remained in confinement as an insane person. Ever since the abandonment of his wife, the husband has remained away from her and from the state, his locus in quo being unknown to his wife or his friends in Alabama until about the time of the filing of this bill or shortly thereafter. After the ascertainment of his whereabouts, and pending this suit, he conveyed or attempted to convey the land in question to appellant. He was afterwards made a party to the suit.
The bill was filed by appellee, as guardian of the insane wife, against appellant individually and as the executrix of her deceased husband, R. S. Lewis, who was a brother of the insane ward, and appellee, the guardian. The bill sought to have a resulting trust declared in the lands, in favor of the ward and against appellant, and enforced, to have an accounting against appellant individually and as executrix, and to have her convey the property to the ward or to appellee guardian. The chancellor granted the relief prayed, and respondent appeals.
The allegations and the facts to show the trust were that after the ward's husband abandoned her, R. S. Lewis lived with his sister in her home, or near by, and, as her agent, took charge of the home to assess it for taxes, etc.; that he did assess it, and in his sister's name, but he allowed it to be sold, and at the tax sale he purchased the property, taking the title in his own name instead of in the name of his sister. Allowing it to be sold for taxes was done, as the brother professed, to defeat any claims through the absconding husband, who was then thought to be dead. He, the brother, even after the tax deed was executed to him and after his sister was adjudged insane, in talking to his other sister, the guardian, and appellee here, spoke of the land as his sister's. When R. S. Lewis died he devised all his lands to his wife, the appellant; and upon the will of her deceased husband the appellant based her sole claim to this land when the bill was filed. Pending suit, however, and after the absconding husband of the insane ward was located, appellant procured his deed to her of the land in question, and thereafter she attempted to set up that deed as a defense to this suit.
On the original hearing, we held that this deed passed a good title to appellant, and that this defense was made out. In this holding we were in error. This deed, under the undisputed facts in this case as we now hold, passed no title, either legal or equitable, because it was not executed in the manner required by our Constitution and statutes as to the alienation of the homestead of the husband; and there is no pretense that the deed of the husband was so executed. Const. § 205; Code, § 4161. The theory upon which, on the former hearing, we held, the deed to be valid is well stated by Justice McClellan in the opinion on that hearing, where the authorities are cited in support of the holding. This theory, in short, was that the land, upon being conveyed by the absconding husband, ceased to be impressed with any homestead rights on the part of either the husband or the wife — on the part of the husband, because he had abandoned the homestead and absconded, with no animus revertendi; on the part of the wife, because she had left it and remained away continuously for a term of years, being all the while confined as a non compos mentis in an insane asylum. The basis error in the former holding was, in applying the law of abandonment of homestead, to facts which did not constitute an abandonment, so far as the wife was concerned, nor subject the homestead to alienation by the husband without his complying with the Constitution and with the statutes governing such alienation. We are now dealing with the wife's homestead rights, and not those of the husband. In the very recent case of Winkles v. Powell, 173 Ala. 51, 52, 55 So. 536, 538, it is said:
"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, which 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, to her 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 *Page 114 presence of his wife 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 occupy 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; [Jerdee v. Furbush, 115 Wis. 277,91 N.W. 661] 95 Am. St. Rep. 936, note. By section 2537, Code of 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."
The difference between the facts of the Winkles-Powell Case and those of the case in hand is that in the former the wife remained on the homestead, while in this instance she left it. But she did not leave it voluntarily; she was adjudged insane, and removed by force, though in accordance with law; hence this case presents the question: Does such a leaving constitute an abandonment by the wife? We hold that it does not. Actual occupancy, in such cases, is not required to preserve the homestead rights of the wife whose husband has abandoned her and absconded, leaving her without aid or assistance from him in her sad and unfortunate condition. It would be unconscionable to hold that he could, by such inhuman conduct, deprive her of the only source of support which he had left her; and so we find the justice of the case in this instance to be the law of the case. The principle of law and general rule in such cases seems to be that occupancy of the homestead is necessary to the survival of the homestead rights; that the protection of the property as a homestead continues only so long as the occupancy continues. This general rule, like most rules of its kind, however, has its exceptions, limitations, and qualifications; and the case in hand falls within one of these exceptions. Abandonment being a question mainly of intent, no uniform rule can be enunciated as to what facts will constitute the act. This court has said that abandonment includes both the intention and the external acts by which the intent is carried out. Tennessee, etc., Co. v. Taylor, 102 Ala. 224,14 So. 379. In the opinion in that case the rule was quoted and stated, from the authorities, as follows:
" 'Abandonment includes both the intention to abandon and the external act by which the intention was carried into effect,' and 'as intent is the essence of abandonment, the facts of each particular case are for the jury.' 1 Amer. Eng. Encyc. of Law, p. 1, notes and authorities; Wyman v. Hurlburt,12 Ohio, 81; s. c., 40 Am. Dec. 461, note 464."
Hence involuntary or compulsory abandonment of, or absence from, the homestead will not be held to constitute an abandonment or a forfeiture or waiver of the homestead rights. Of such character would be the abandonment charged in the case at bar, and similar cases, where the occupant was adjudicated insane, and removed to and detained in an asylum. Burkhardt v. Walker Son, 132 Mich. 93, 92 N.W. 778, 102 Am. St. Rep. 392; Sheehy v. Scott, 128 Iowa, 551, 104 N.W. 1139, 4 L.R.A. (N.S.) 368, 111 Am. St. Rep. 184, 5 Ann. Cas. 924; Huffman v. Smyth, 47 Or. 573, 114 Am. St. Rep. 938, 8 Ann. Cas. 681, and notes thereto. From these notes we quote the following, as stating the rule announced by the authorities cited:
"If a wife is compelled through fear of violence at the hands of her husband to live at a place other than upon the homestead, or if her absence is caused by any unlawful act committed by him, her enforced absence will not be held to be an abandonment or forfeiture of her rights in the homestead, where it appears that she never had any intention to relinquish the same. Vanzant v. Vanzant, 23 Ill. 536; Rogers v. Day,115 Mich. 664, 74 N.W. 190 [69 Am. St. Rep. 593]; Atkinson v. Atkinson, 37 N.H. 434; Wood v. Lord, 51 N.H. 448." Huffman v. Smyth, 47 Or. 573, 84 P. 80, 114 Am. St. Rep. 938, 8 Ann. Cas. 681, note.
"In Blumer v. Allbright, 64 Neb. 249, 89 N.W. 809, the court held that a wife was not deprived of her homestead rights because her husband left the homestead without an intention to return unless she participated in his intention. So, also, it is held that a wife loses none of her homestead rights by being driven from the homestead through the cruelty of her husband. Rogers v. Day, 115 Mich. 664, 69 Am. St. Rep. 593, 74 N.W. 190. And the detention of a husband or wife in a lunatic asylum is held not such an absence as indicates an intention to abandon the homestead. Way v. Scott, 118 Iowa, 197, 91 N.W. 1034; Nat., etc., Ass'n v. Maloney, 22 Ky. Law Rep. 1094, 60 S.W. 12; Holburn v. Pfanmiller's Adm'r [114 Ky. 831] 24 Ky. Law Rep. 1613, 71 S.W. 940; Flynn v. Hancock, 35 Tex. Civ. 395,80 S.W. 245." Burkhardt v. Walker Son, 132 Mich. 93, 92 N.W. 778, 102 Am. St. Rep. 392, note.
There is another general rule, to the effect that the abandonment of the homestead by the husband as the head of the family, and the acquisition of another residence or homestead, terminates the right of the wife, as well as that of the husband, therein as to a homestead. An exception to this rule, however, is that if the abandonment be not in good faith, and to acquire a residence, if not a homestead, for the wife and family, but is in fact a desertion of them by the husband and father, then it does not impair or forfeit the rights of the wife. He does not, in such case, act for them, but against them. He is not allowed thus to defeat the object and purpose of the homestead laws, such purpose and object being the protection of the family. The homestead laws, as a system, including even those exempting the homestead to the husband, are not for the sole benefit of the husband, but are for the benefit of the wife and children as well, even during the husband's life. Witherington v. Mason, 86 Ala. 345, 5 So. 679,
*Page 115 11 Am. St. Rep. 41; Kennedy v. Tuscaloosa Bank, 107 Ala. 170, 18 So. 396, 36 L.R.A. 308.
This court has uniformly held that the homestead laws are to be liberally construed, to the end of advancing their beneficial objects, by giving effect to the manifest purpose of the Constitution makers and of the Legislature in conferring the rights. Thompson v. Thompson, 91 Ala. 591, 8 So. 419, 11 L.R.A. 443; Talladega Bank v. Browne, 128 Ala. 557, 29 So. 552. The rule is well stated in 13 Ruling Case Law, 548, where it is said:
"The purpose and object of the homestead provision being the protection and maintenance of the wife and children against the neglect and improvidence of the husband and father, the statutory enactments in aid of such provision and supplemental thereto are to be given a liberal construction, so that the purposes intended by the laws shall the better be advanced and secured. And so the courts employ the most liberal and humane rules of interpretation to insure the unfortunate debtor, and his equally unfortunate but more helpless family, the shelter and influence of home."
This court has spoken as follows on the subject:
"Their obvious purpose is to secure to each family a home and means of livelihood, irrespective of financial misfortune, and beyond the reach of creditors; security of the state from the burden of pauperism, and of the individual citizen from destitution. Such statutes are entitled to a liberal construction, a construction in conformity with the benevolent spirit which moved their enactment." Hines v. Duncan, 79 Ala. 114,115 (58 Am. Rep. 580).
This court is thoroughly committed to the doctrine that a deed from an absconding husband under circumstances such as marked that in the instant case, is absolutely void and of no effect. In the case of Thompson v. New England Mortgage,110 Ala. 400, 405, 18 So. 315, 316, 55 Am. St. Rep. 30, 31, it is said:
"The purpose of the statutes in securing an exempt homestead to every resident of the state, and in requiring the wife's voluntary signature and assent to any alienation thereof when belonging to the husband, is to protect the wife, and through her the family, in the enjoyment of a dwelling place. Turner v. Bernheimer, 95 Ala. 241 [10 So. 750] 36 Am. Rep. 207. This court, as well as those in other states having a similar system, has adopted a strict rule on this subject, in accordance with which it is generally held that to convey the homestead there must be a strict compliance with the statutory mode of alienation. In a recent case, where we collected our previous decisions, speaking of a deed which was without the acknowledgment of the wife, we said: 'By the repeated decisions of this court, as well as by the terms of the statute itself, such a conveyance is void. It is said of such a deed that it is a nullity to all intents and purposes, and confers no rights, present or prospective, is totally insufficient as a muniment of title to support an action of ejectment, and is incapable of passing any estate or interest whatever in the homestead.' Parks v. Barnett, 104 Ala. 438 [16 So. 136]; Alt v. Banholzer, 39 Minn. 511 [40 N.W. 830] 12 Am. St. Rep. 681, and note. The insanity of the wife does not dissolve the bond of marriage, nor withdraw her or her family from the beneficial purpose of the homestead laws. The statute is plain, unambiguous, and admits of no exceptions, which would destroy its obvious design."
It therefore follows that appellant acquired no title by virtue of the deed secured after this suit was brought; and, as we held on the original hearing that her husband acquired no title by the tax deed, it follows that she acquired no title by virtue of his will, and therefore showed no title to the land in question.
And as under the undisputed facts appellant had received the income and profits from the land since the death of her husband and he had received such rents and profits for a period during his lifetime, under the circumstances of the disability of the insane ward, each of them should have accounted to the guardian of the non compos mentis, under whom the rents and profits were received.
It follows that the decree of the chancellor was in all things correct, and that it must be affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, GARDNER, and THOMAS, JJ., concur. McCLELLAN and SAYRE, JJ., dissent.