
    Eugene SMITH, Jr. v. Dorothy Jean SMITH.
    Civ. 2983.
    Court of Civil Appeals of Alabama.
    March 16, 1983.
    Donald M. Briskman and Mark R. Ulmer, Mobile, for petitioner.
    George A. Tonsmeire, Jr., Mobile, for respondent.
   BRADLEY, Judge.

This case has been remanded to us by the Alabama Supreme Court with instructions to make a determination of whether appellant-husband represented to appellee-wife that she could live in the couple’s former homeplace rent free if she agreed to make mortgage payments on the property. Ex parte Smith, 429 So.2d 1050 (Ala.1983).

The supreme court held that we committed error by failing to reverse the trial court in this regard because the evidence was not clear that the parties had an agreement that the appellee could live in the house rent free and directed us to reconsider the matter.

In our original decision of the matter, we conditionally affirmed the trial court’s decision that title to the homeplace remained in Eugene Smith, Jr., as had originally been ordered in the parties’ divorce decree, subject to an equitable lien in favor of the wife, Dorothy Jean Smith. Smith v. Smith, 429 So.2d 1047 (Ala.Civ.App.1982). We conditionally upheld the imposition of the equitable lien in favor of the former wife on grounds that the husband had made misrepresentations to her that the property was hers and also found that the evidence was unclear on the issue of whether Smith told his former wife that she could live in the home rent free if she made mortgage payments on it. After a careful reexamination of the record, we find no evidence of an agreement between the parties that the former wife could live in the home rent free if she made monthly mortgage payments.

As directed by the supreme court, we reverse that aspect of the trial court’s judgment imposing an equitable lien because the appellant’s conduct misrepresented the true state of the facts.

Also as directed by the supreme court, the cause is remanded to the trial court for it to determine the reasonable rental value of the house during the period the former wife occupied or possessed the house. The fair value of the rent of the house should not exceed the amount of the lien determined by the trial court to be due.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

WRIGHT, P.J., and HOLMES, J., concur.  