The primary purpose of the bill is the sale of lands of tenants in common for division, upon the ground that they cannot be equitably divided in kind. The suit is by the husband against the wife.
In Miles v. Miles, 207 Ala. 57, 91 So. 886, the bill was held good as against the grounds of demurrer assigned. Following Mitchell v. Mitchell, 101 Ala. 183, 13 So. 147, we held that such a bill cannot be maintained by the husband against the wife, over her objection, when the land constitutes the homestead.
The question of homestead, vel non, was made an issue on the hearing upon the merits and decided against Sallie Miles, the wife.
The evidence, without conflict, shows that both husband and wife ceased to occupy the residence, and that the wife rented it and received the rents for about two years before the bill was filed, and that a short time before suit brought she had leased it for a term of years. No declaration of claim was filed.
In Fuller v. American Supply Co., 185 Ala. 512, 64 So. 549, we reviewed the decisions and statutes touching the abandonment of the homestead. It was held that the owner who quits his homestead temporarily with intent to return, and without letting it to rent, does not forfeit his homestead right, though he fails to file a declaration pursuant to section 4192 of the Code of 1907. *Page 28
In Smith Lumber Co. v. Garry, 202 Ala. 473, 80 So. 857, we held that the effect of the amendment wrought by the above section "is to render any leasing which transfers the exclusive possession to the lessee for any definite term an abandonment of the homestead right, unless it is saved by the statutory declaration and claim required, and to perserve the homestead right, if so claimed, regardless of the term of the lease." The latter decision covers the case at bar, and the court below properly held the homestead abandoned.
The original bill covers three adjoining lots, 8, 9, and 10, of Emma Shaw survey in East Birmingham. By amendment lot No. 9 was stricken out. It is insisted this lot should have been treated as part of the property in the matter of division or sale. It clearly appears this lot was purchased, paid for in cash, and deeded to Tom Miles in March, 1905. It appears the other two lots or one of them probably was purchased at the same time and part payment made thereon. In April following the deed to two lots, 8 and 9, was made to Tom and Sallie Miles jointly, and both executed notes and mortgage to secure the purchase money. In September following a deed to lot 10, expressing a nominal consideration, was executed to them jointly. We are satisfied from the evidence that lot 9 was included in the joint deed by mistake in description; that the deed of September was to correct this. This was the occasion of the collateral agreement showing the purchase-money mortgage was for purchase money due on lots 8 and 10, instead of 8 and 9, but stipulating that the mortgage on 9 should still stand in lieu of mortgage on No. 10. These facts did not create an estoppel against Tom to claim No. 9 as his individual property.
By answer and cross-bill Sallie sets up a claim in equity to the entire property, on the theory that she paid the whole of the purchase money, and the moiety held by Tom in lots 8 and 10 is held in trust for her. Much testimony and argument is directed to this question. Each of the parties claims to have paid it all. As to lot 9 it is agreed the purchase money was brought from Tennessee on their removal to Birmingham. Both claim the money. As to lots 8 and 10, the purchase money, with possible exception of $50, was evidenced by 15 notes of $30 each, and one of $20, payable monthly. They matured in 1905 and 1906, their early days in Birmingham.
A careful study of the whole evidence on this issue convinces us that during this period Tom was working as a miner, getting good wages, and that both co-operated in paying out their property in the hope of having a home. The amount contributed by Sallie, if any, did not exceed the amount of her joint liability on the purchase-money notes. On the whole Sallie has not met the burden of proof on this issue, and after this long period of time we approve the finding that the title should remain where the parties placed it, in their happier and better days. Lehman v. Lewis, 62 Ala. 129; Manning v. Pippen, 95 Ala. 541,11 So. 56; Fowler v. Fowler, 205 Ala. 514, 88 So. 648.
In reviewing the evidence as to whether the property may be equitably partitioned in kind, the fact that it consists of two small city lots, not contiguous to each other, reduces the primary inquiry to whether they are of the same or substantially the same value. One is the larger corner lot. The other has now a small residence on it. Opinions of witnesses vary widely as to their relative value, and as to the market value of either.
The burden of proof is on complainant to prove the property cannot be equitably divided. This burden is met if it is shown that the only practical division would be by allotting one parcel to one and one to the other, and that the lots are not of substantially equal value. Under the evidence we will not disturb the decree of sale.
A residence was erected on lot 10, and occupied by the parties as their home until it was burned in 1915. Sallie Miles, the wife, insured this residence, and when it was burned collected and retained the insurance. The court below decreed to the husband one-half this fund, with interest, and declared a lien therefor on Sallie's share of the proceeds of sale.
This feature of the bill was not presented nor reviewed on the former appeal. The right to this money turns upon several questions touching the relations of the parties toward the property and this insurance.
Where one joint owner insures his interest in the property separately, he is, of course, entitled, in case of loss, to recover and retain the insurance. If he insures for the benefit and at the expense of all, each is entitled to a share of the proceeds. So, if the one takes out insurance on the whole, and calls on the co-tenants to contribute to payment of the premiums, or pays them from rents of the common property, they should share therein in case of loss. These principles are clear enough. 26 C. J. 435; Lebanon Nat. Bank v. Bond, 89 Tenn. 462,14 S.W. 1078; Continental Ins. Co. v. Maxwell,9 Kan. App. 268, 60 P. 539; Freeman on Cotenancy and Partition (2d Ed.) § 264.
If a tenant in common insures improvements made by himself at his own expense, the insurance, in case of loss, should be his. Annely v. De Saussure, 26 S.C. 497, 2 S.E. 490, 4 Am. St. Rep. 725.
But if the insurance is taken by one only on the property as sole owner for its full insurable value, who pays the premiums thereon, the other joint owner being no *Page 29 party to the transaction in any way, whether the insurance, in case of loss, inures to both, is not free from difficulty. Manifestly, the insurer in such case would have the right to avoid the policy or limit payment to the insurable value of the interest of the insured, in a proper case; but whether the other joint owner has an interest in law or equity in the insurance money so collected may properly turn on the equities of the particular case.
In Durand v. Thouron, 1 Port. 238, a store keeper took insurance on the contents of his store. The contents included goods deposited with him for sale. A loss occurred, and he gave the owner of the goods on deposit a memorandum agreeing to account for his proportion of the insurance. It was held that such memorandum evidenced a purpose to insure for joint benefit; that the other party could ratify same and claim his part.
In Batre v. Durand, 1 Port. 251, as also in Snow v. Carr,61 Ala. 363, 32 Am. Rep. 3, the policy covered goods held in trust, for sale, etc. In both cases the decision turned on the construction of the policies as to property covered thereby.
In Shadgett v. Phillips, 131 Ala. 478, 31 So. 20, 56 L.R.A. 461, 90 Am. St. Rep. 95, it was held that insurance on a piano taken out by and in the name of one holding under a conditional sale contract, could not be reached in equity by the vendor, although the insured had paid but a small portion of the price. The theory of the decision was that there was no privity of contract, that it was for the sole indemnity of the insured, and the vendor was not concerned as to any adjustment of loss made on the policy. See, also, Ridley v. Ennis, 70 Ala. 463; Vandegraaff v. Medlock, 3 Port. 389, 29 Am. Dec. 256.
In the case at bar the wife, so far as appears, took out the insurance in her own right, paid the premiums from her own funds; and it does not appear it was done for the common benefit of herself and husband. It is generally held that the husband has, in such case, no claim on the fund as against the insurer. Pelican Ins. Co. v. Smith, 107 Ala. 313, 18 So. 105; Miotke v. Milwaukee Mechanics Ins. Co., 113 Mich. 166,71 N.W. 463; 26 C. J. 436.
But there are other equities here, which, to our minds, are of controlling importance. Our study of the record convinces us that Sallie paid all or the greater part of the cost of this insured dwelling. The money was borrowed from Mrs. Russell, secured by mortgage and a series of notes of $12 each, payable monthly during a period of more than 5 years. The mortgage recited it was Sallie's debt, and the notes were signed by Tom as surety. The house was built about the time the lots were paid out. Soon thereafter it appears the miners' strike of 1907 threw Tom out of employment. He seems to have lost interest in Birmingham property, began to drift, and finally drifted away from Sallie. Meantime Sallie had an income of her own, held loyally to the task of paying out her home, and insured it against the day of misfortune. Without too long-drawn discussion, we think these were the notes she was paying out during those years of toil as testified to by so many witnesses. The house burned, she got the money, kept it, or used it, as she claims, from 1915 to 1920, when this trouble arose.
Moreover, the husband has the duty to support his wife and family. A part of this duty is to provide shelter. This is not only a private but a public duty. Clisby v. Clisby, 160 Ala. 572,49 So. 445; Ortman v. Ortman, 203 Ala. 167, 82 So. 417.
This insured dwelling was, at the time the insurance was taken, and at the time of the loss, the homestead of the parties. The wife had a greater interest than that of a joint owner of ordinary property. The insurance money in this instance stood in lieu of the lost home.
We declare it the law of Alabama that if the wife insures for her own benefit the family dwelling, owned by herself and husband jointly, pays the premiums thereon from the earnings of her own labor, and collects the insurance, the husband cannot maintain an action at law or in equity against her for any portion thereof.
The court below erred in decreeing one-half this fund to the husband. For this error, the decree of the court below is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.