In Witherington v. Mason, 86 Ala. 349, 5 So. 681 (11 Am. St. Rep. 41) it was said:
"The homestead right is of constitutional or statutory creation, and its nature, character, and extent depend on the law creating and defining it. The exemption is a personal right conferred on the debtor, the benefit and enjoyment of which inures to his family, through and by the exemption in his favor. The right and estate of homestead are in the husband, inwhom the title to the property resides. Neither theConstitution nor the statute confers on the wife any right orestate in the homestead during his life, but a mere power toprevent its alienation. She may occupy and enjoy it with her husband by his permission, but he has the right to abandon it at pleasure." (Italics supplied.)
This pronouncement was recently expressly recognized in Winkles v. Powell, 173 Ala. 51, 55 So. 536. This doctrine of Witherington v. Mason is a rule of property in this state, and should be so respected. According to it, the wife's relation to the homestead area is dependent, conditionally secondary, derivative merely. If a husband has not a homestead in this state, the wife has not, cannot claim the privilege thereof, nor possess the "mere power to prevent its alienation."
By amendment of the complainant's bill W. F. Sparling was made a party complainant. In this amendment it is averred (transcript, p. 9) "that the complainant W. F. Sparling is a resident of Spartanburg county, S.C. * * *" In the same amendment (transcript, pp. 10, 11) it is averred that W. F. Sparling, and not Mrs. Janet A. Sparling, was the owner in fee of the property in question, and that Janet A. Sparling was in "possession and enjoyment under the seisin of her husband, W. F. Sparling, as her home" (transcript, pp. 54, 55). In W. F. *Page 116 Sparling's verified answer to interrogatories propounded by the respondent (transcript, p. 19) he gave Spartanburg, S.C., as his place of residence; and, in response to the second interrogatory (transcript, p. 19), which reads:
"State how long you have lived in Spartanburg, S.C., and state what other places you have lived in since leaving Birmingham, giving the length of your residence at each * * * place"
— he said:
"Eight or 10 years; Kingston, N.Y., a few months; Columbia, S.C., about one year; Camden, S.C., about four months; Lancaster, S.C., about one year; Douglass, Ga., a few months; Douglasville, Ga., a few months; Boliver, Tenn., about six months; Anniston, a few months; Passaic, N.J., and Winsted, Conn., South Point, Conn., and perhaps other places, for a short time each."
In the deposition of W. F. Sparling, taken by the complainants, he testified (transcript, p. 62) that he resided at Spartanburg, S.C.; and in answer to interrogatory 5 (transcript, p. 63) he testified that he had not resided in Birmingham for some 20 years. The whole deposition of Sparling discloses the recognition of the fact by the complainants that W. F. Sparling had not resided in Alabama for many years before the quitclaim deed to Mrs. Lewis was executed by him, for a consideration, on April 18, 1910; that he was not a resident of Alabama for some years before, at the time of and since Mrs. Janet A. Sparling was adjudged insane and committed to the State Hospital for the Insane, where she has remained incurably insane. The majority of the court have held, in granting the rehearing and affirming the decree below, that the premises described in the quitclaim deed were impressed, continued impressed with a homestead character, and that the quitclaim was void because it was not, as Code, § 4161, requires, jointly executed by the wife, Janet A. Sparling. The statute (section 4161) follows section 205 of the Constitution, which prescribes a limitation upon the right to convey or incumber thehomestead. That section (205), so far as presently important, reads:
"Every homestead, not exceeding eighty acres, and the dwelling and appurtenances thereon, to be selected by the owner thereof, and not in any city, town or village, or in lieu thereof, at the option of the owner, any lot in a city, town, or village, with the dwelling and appurtenances thereon owned and occupied by any resident of this state, and not exceeding the value of two thousand dollars, shall be exempt from sale on execution or any other process from a court. * * * Such exemption, however, shall not extend to any mortgage lawfully obtained, but such mortgage, or other alienation of saidhomestead by the owner thereof, if a married man, shall not bevalid without the voluntary signature and assent of the wife tothe same." (Italics supplied).
In Turner v. Turner, 107 Ala. 465, 468, 469, 18 So. 210, 54 Am. St. Rep. 110, it was said:
"Homestead ex vi termini means the family seat or mansion, and the change of verbiage in our statute by the codifiers, in compiling the Code of 1886, whereby they omitted from section 2507 (now section 4160, Code of 1907) the phrase, 'owned and occupied by any resident of this state' was not intended to affect the well-settled rule recognizing actual occupancy, except in the single case stated (now and then as provided in Code, § 4192, and not important to the question under consideration), as an essential condition of a valid homestead exemption." Land v. Boykin, 122 Ala. 627, 629, 25 So. 172; Garrett v. Jones, 95 Ala. 96, 101, 10 So. 702.
In the last-cited decision it was said, by way of approving quotation:
"A man's homestead must be his place of residence; the place where he usually sleeps and eats; where he surrounds himself with the ordinary insignia of home, and where he may enjoy its immunities and privacy."
Actual occupancy, coincident with ownership, is an essential prerequisite to the establishment and retention of a homestead in this state; with the single exception of temporary absence contemplated in Code, § 4192. Boyle v. Shulman, 59 Ala. 567; Woodstock Iron Co. v. Richardson, 94 Ala. 629, 10 So. 144, where it was said:
"It is legally impossible to have two homesteads at the same time." Barber v. Williams, 74 Ala. 331; Constitution, §§ 205, 206.
As the Constitution, statutes, and decisions all pronounce, it is the owner alone who can give, who has the capacity to give, a lot or tract of land the character of a homestead.
In this instance the owner, W. F. Sparling, is averred in the amended bill to be a nonresident of Alabama. The undisputed evidence shows that he was, when this quitclaim deed was executed, not residing in Alabama, and had not resided in Alabama for over 10 years. To affirm, in such circumstances, that W. F. Sparling had from the year 1900 to and including 1910, or subsequently, a homestead in Alabama is but to assert a result that immediately violates the Constitution and the statutes which plainly deny the right to a homestead to one who does not reside in Alabama. It is only by pronouncing, in effect, that one who actually resides in South Carolina is still a resident of Alabama that our Constitution and statutes can be accorded the respect their prescriptions and mandates require. The opinion in Winkles v. Powell, 173 Ala. 46, 50, 51,55 So. 536, is not authority and does not afford analogy for the view that the lot in question was the homestead of W. F. Sparling when he executed the quitclaim deed to appellant. There the question presented and decided was whether L. R. Powell denuded the Marshall county, Ala., dwelling of its homestead character by moving away from the family abode, and whether he established a homestead in Winston county, Ala. Powell, the owner of both places, was and continued to be a resident of Alabama. If Powell had removed to and resided in another state, after he removed from his Marshall county, Ala., abode, and this court had held that, though Powell resided in another state, his original homestead in Marshall county, Ala., continued to be Powell's *Page 117 homestead notwithstanding he did not reside in Alabama, the case could be referred to as an expression favorable to the decision in the cause at bar. But even in Winkles v. Powell, which in other respects departed from long-established doctrine in this state, it was expressly recognized that the husband, the owner, was authorized under our laws "to choose and fix the domicile of himself and wife and children," subject to the limitation that he should not so exercise this power "as to imperil the health or safety of the wife," a condition that Powell's removal from his abode in Marshall county did not impose upon his first wife. But it was nowhere intimated in that opinion that a nonresident of Alabama could have ahomestead in Alabama, of which institution this court said in Barber v. Williams, 74 Ala. 331, 333, 334, Brickell, C. J., writing:
"Occupancy as a home, as a dwelling place, is the fact which impresses upon land the character of a homestead, drawing it within the influence of constitutional or statutory provisions, exempting it from liability for the payment of debts, or from subjection to administration, or intercepting the descent to the heir"
— and, it may be added, in accordance with abundant authority afforded by Constitution, statutes, and decisions: Clothing the wife with the "mere power to prevent its [homestead's] alienation" by refusing to join in its conveyance or incumbrance. The body of our law on this subject has been built up and repeatedly reaffirmed by Constitution makers, legislators, and judges of highly esteemed wisdom, legal learning and sensitive regard for every moral element of the social order; and this should at least insure caution and conservatism before overturning the results of their mature judgments.
In view of the conclusion reached in Winkles v. Powell, supra, predicated of the fact that the husband left the original abode because of the infidelity of the wife, and himself took another as wife under the mistaken notion that he had been divorced from the first wife, it is interesting to contrast therewith the expressions of this court in Nolen v. Doss, 133 Ala. 259, 31 So. 969, Coker v. Coker, 160 Ala. 269,49 So. 684, 135 Am. St. Rep. 99, and Chamboredon v. Fayet, 176 Ala. 211, 216, 217, 57 So. 845, where, in the first cited case the infidelity of the wife was not permitted to defeat her right, growing out of the established, undissolved relation, to the exemption provided by law. It would seem to be at least somewhat anomalous to favor one rule for the one that is denied to the other. The Constitution and statutes should not be subjected to judicial amendment in the one case any more than in the other. It is said, however, particularly in Winkles v. Powell, 173 Ala. 51, 52, 55 So. 536, as quoted in the opinion of my Brother Mayfield, ante, that Code, § 4190, is established to influence in determining the validity of W. F. Sparling's quitclaim deed to the appellant. That section (4190) reads:
"If a husband or father, entitled to a homestead or other exemption, absconds or abandons his family, or leaves the state, or is insane, or is confined under a charge or conviction for felony or misdemeanor, or is under any other disability or inability, the wife, or if there is no wife, the minor child or children, residents of this state, with the intention so to continue, shall be entitled to interpose any and all claims of homestead or other exemption which the husband or father could have interposed; but the right to such exemptions shall continue only so long as the wife and minor child or children, or either, shall remain bona fide residents of this state. In the event of the death of the husband or father pending any contest of a claim of homestead, or other exemption, such contest may be revived in the name of the widow, if there be one, or if there be none, in the name of the minor child or children, if there be such; but if neither widow nor minor child is left surviving, the claim of exemption shall abate, and the property ordered sold for the satisfaction of the process. No judgment of condemnation or sale shall be made under this section till the wife, or if there is no wife, the minor child, shall have had 20 days' written notice of the levy of the execution, to be served by the sheriff."
It will be observed that this section (4190) has no reference whatsoever to the alienation of the homestead, a subject to which section 205 of the Constitution and section 4161 of the Code have particular reference. The idea underlying the provisions of Code 1907, § 4190, was stated in section 2837 of the Code of 1876, embodying section 20 of the act approved February 9, 1877 (Gen. Acts 1876-77, pp. 32, 40), which was entitled "An act to regulate property exempted from sale for the payment of debts and from administration, and to provide for the ascertainment and protection of such exempted property." True to the title quoted, which had no reference to the alienation of the area that had been given, by the owner (not the wife), the character of a homestead, section 20 of the act cited (Code 1876, § 2837) provided that if the defendant inthe execution was "physically or mentally unable to make claim or be absent from the county at the time of the levy and does not return two days previous to the sale, then some other person having knowledge of the facts" might make the claim for him. By the act approved March 1, 1881 (Gen. Acts 1880-81, p. 121), it was provided:
"That where any married man, who is a resident of this state, shall abscond or leave the state and abandon his family, leaving in the state a wife, or wife and a minor child or minor children, the wife so left shall have the right to claim,in the name of her husband, all exemptions which he would be entitled to claim had he not absconded or left the state, and if there be a minor child or minor children, and no wife, the guardian or custodian of such minor child or minor children shall have the right to claim such exemptions for such minor child or children, in the name of the father of such minorchild or minor children; the claims in such cases to be conducted in the same manner as exemptions are now claimed under the Code.
"Sec. 2. * * * That the exemptions secured by the first section of this act shall continue only so long as the person or persons for whose benefit the exemption is claimed shall remain bona fide a resident of this state, with the intention *Page 118 to so continue, and the persons claiming such exemptions shall in every case make affidavit before some officer authorized to administer oaths, that the person for whose benefit such exemption is claimed is a bona fide resident of this state, and intends to so remain."
This act of 1881 became section 2537 of the Code of 1886, and section 2063 of the Code of 1896. It is manifest from the terms employed in the act of 1881 that the purpose was to invest the wife and minor children, or either, with the power to claim, to assert all the exemptions the absent husband or father would have been entitled to claim, against process to enforce a demand against the absent exemptioner. The same notion pervaded this law when it was made section 2537 of the Code of 1886; and the idea was emphatically expressed by the provision for the sale of the property "for the satisfaction of the process." The identical purpose was entertained in the codification of 1896, section 2063. The like law, when carried forward into section 4190 of the Code of 1907, had added to it by the Code committee of the Legislature these terms:
"No judgment of condemnation or sale shall be made under this section till the wife, or if there is no wife, the minor child, shall have had twenty days' written notice of the levy of theexecution, to be served by the sheriff." (Italics supplied.)
The last promulgation of the substance of the act of 1881, through section 4190 of the Code of 1907, admits of no sort of doubt that its purpose and effect, when applicable, was to invest the wife or minor children of the absent husband or father with the means to assert the exemptions from appropriation by process running against the absent husband or father, and that it was in no degree contemplated by the lawmakers that the provisions of this section (4190) should or could have any possible effect upon the alienation (Const. § 205) of the area that the husband or father, before he left the state, had, as owner, impressed with the character of ahomestead.
In addition to the demonstration the above-recited history of section 4190 and its plain terms make of the utter mistake to suppose that the provisions of section 4190 apply otherwise than to claims of homestead exemptions from condemnation under process, reference may be made to Garland v. Bostick, 118 Ala. 209,213, 214, 23 So. 698, and Sewell v. Sewell, 156 Ala. 616,619, 47 So. 204, where it was held that Code, § 4192, related "exclusively to claim of homestead against levy and sale under process"; this statute (4192) having originated in the same act (Act approved February 9, 1877, Gen. Acts 1876-77, p. 43), in which what is now Code, section 4190, was first written. The progenitors of Code, §§ 4190, 4192, were sections 20 and 26, respectively, of the same original enactment of 1877, under a title, quoted above in this opinion, that restricted its purview and effect to exemptions from sale underprocess. If section 4192 was and is exclusively applicable to exemptions from sales under process, as was expressly held in Garland v. Bostick and Sewell v. Sewell, supra, then section 4190, for the same reason, coming from the identical act as the progenitor of section 4192, should be likewise held to relateexclusively to homestead exemptions from sale under process; and so to forbid its application to restrain alienation by a husband who has been for many years a nonresident of Alabama.
The Constitution (section 205) has itself expressly undertaken to prescribe the limitation, with respect to the joinder of the wife in the conveyance or incumbrance of the homestead; and this limitation, so far as alienation is concerned, is predicated of the homestead to which that section refers (Turner v. Turner, 107 Ala. 465, 18 So. 210, 54 Am. St. Rep. 110; Barber v. Williams, 74 Ala. 331, 333, 334, among others); and this limitation of constitutional source cannot be altered by the Legislature, since the established rule is that where the Constitution prescribes, its method is a "limitation upon the powers to be exercised." Cooley, Const. Lim. (7th Ed.) p. 114; Perry County v. Railroad Co., 58 Ala. 556; Coleman v. Town of Eutaw, 157 Ala. 327, 334-336, 47 So. 703. According to the plainest terms of section 205 the limitation onalienation depends upon whether the area is a homestead within the purview of section 205 of the Constitution; and, if the area is not a homestead within the contemplation of section 205, the limitation has no application. It is the Constitution, the paramount law — not the Legislature — that has prescribed the limitation upon alienation and defined its basis, viz. the homestead; and in defining this basis, viz. thehomestead, the Constitution has, by its terms and according to repeated well-considered decisions long since delivered, confined the exemption therein described to residents of Alabama. Obviously, it is no sound answer to this to say that the Legislature may, in its discretion, provide other or greater exemptions than those defined in the Constitution, since the question under consideration is one involvingalienation of the homestead, not of claiming exemptions against a demand, against process directed to the appropriation of the absent exemptioner's property. Naturally, there is among our statutes no legislative effort to change the prescription of the Constitution, § 205, for the alienation of the homestead. An effort to make a change of the limitation, to extend or contract it, would but lead to invalidity.
My judgment is that the previous order of reversal of the decree and the dismissal of the bill should not be annulled; and hence that the rehearing should have been denied, since, if the premises described in W. F. Sparling's quitclaim deed to appellant was not a *Page 119 homestead, and, hence, the joinder of the wife in its alienation was unnecessary, the conveyance was valid without her signature in virtue of Code, § 4495.