Hodges v. Winston

The two parcels of land involved in this suit are not contiguous. The house in which James Gr. Coleman, the judgment-debtor, lived with his family, was on the forty-acre tract. In connection with this tract he used the other tract containing fifty-five acres, cultivating it every year, and getting from it a support for his family. The aggregate value of the two tract's was less than two thousand dollars. They were occupied and Cultivated in connection with each other, and were used as a common source of family support. Together they cotild constitute a homestead. — Dicus v. Hall, 83 Ala. 159. The facts as to the judgment-debtor’s occupancy and use of the two parcels together were testified to by the witness Thomas Coleman. After he had testified, evidence offered by the plaintiff to show that the sale of the land by the judgment-*517debtor to Hodges was fraudulent and void as to tbe former’s creditors was objected to by tbe defendants, on tbe ground, tbat tbe testimony of tbe witness Tbomas Ooleman showed tbe land sued for to bave been tbe homestead of James G-. Ooleman at tbe time of tbe execution of bis deed; and this objection was sustained. Assuming tbat tbe lands .constituted a homestead, tbis ruling was correct, as tbe plaintiffs.in a simple money judgment, and those claiming under them, have no right to complain of tbe disposition of homestead property which could not be subjected to their demand. The testimony of tbe witness Tbomas Coleman, as. to the judgment-debtor’s occupancy and use of tbe two parcels together, remained wholly uncontroverted. Tbe defendants, ip making tbe objection on tbe ground mentioned, precluded themselves from contending that tbe two parcels together did not' constitute a homestead. Having obtained, a substantial advantage by taking and successfully maintaining tbe position tbat tbe lands in question constituted a homestead, they estopped themselves from claiming, on tbe same state of evidence, tbat they were not a homestead. They could not support one position of defense by claiming tbat tbe lands constituted a homestead, and at tbe same time obtain tbe advantage of another position which involved a denial of tbe homestead character of tbe land. A defendant who, for tbe purpose of maintaining a defense, has deliberately represented a thing in one aspect, can not be permitted to contradict bis own representation by giving the same thing another aspect in tbe same case. — Caldwell v. Smith, 77 Ala. 157 ; Hill v. Huckabee, 70 Ala. 183; Herman on Estoppel, (4th Ed.) 687.

James G-. Coleman was living on tbe land as bis homestead when be and bis wife signed and delivered tbe deed to tbe defendant Hodges. Without tbe separate acknowledgment of tbe wife, and tbe certificate thereof as required by tbe statute, tbat deed was a nullity. — Code, § 2508. Tbis court, after a full consideration of tbe question, has decided tbat, when a deed has been delivered to tbe parties, and has been accepted for record, or as tbe complete execution of the instrument, tbe officer before whom tbe grantors acknowledged it has no power to alter or add to bis certificate, or to make a new certificate, without a re-acknowledgment. Griffith v. Ventress, 91 Ala. 366. Tbe reasoning in tbat case to support tbe conclusion tbat tbe officer taking tbe acknowledgment is without power, is equally applicable whether tbe officer, when tbe alteration or addition, or tbe new certificate is made, is bolding bis office under tbe same election *518or appointment under which he held at the time the original acknowledgment was taken, or has gone out of office, or holds office under a new election or appointment. The evidence in the present case show's that the certificate of the separate acknowledgment of the wife was not made until after the conveyance had been delivered and once recorded, and that it was made without re-acknowledgment, and after the lien of the execution under which the plaintiff purchased had attached. Without the wife’s separate acknowledgment, and the certificate thereof, the deed to the defendant Hodges was a mere nullity when the lien of the execution attached. The evidence showing, without conflict, a judgment against James G. Coleman, the issue of execution thereon, a levy and sale under the writ, and the sheriff’s deed to the plaintiff, all in due form, and that at the time of the levy and sale the land had ceased to be the homestead of the defendant in the judgment, and that his attempted conveyance thereof was a mere nullity — the plaintiff was entitled to recover. If there was error in any of the rulings of the court of which the appellants complain, it was error without injury. There was no evidence to support any defense.

Affirmed.