
    Burrows v. Pickens et al.
    
    
      Statutory Action of Ejectment'.
    
    
      1., Action, of -ejectment; not abated by death of one of the plain- ,, -tiffs. — Unger the statute (Code, § 38) an action, of ejectment in . p which there are several parties plaintiff, is not. abated by tbe death of one of the plaintiffs; but upon a suggestion of .the ‘ 'death ,-of one of the plain-tiffs upon the record, it may pro- ' ’ ceed in'the name of the surviving plaintiffs.
    2/ Alienation Of homestead; invalid without separate aelcnowledg- ■ ■ • ment of wife. — A conveyance of the homestead, which, al- ■- though signed by the wife, has no certificate of the wife’s separate examination and acknowledgment,' as required by statute (Code, § 2034), is'invalid and passes no title.
    31 Same; effect of recital of relinquishment of dower. — A conveyance of the homestead, though signed by husband and wife, and acknowledged by the wife in proper form to pass title to the homestead is, nevertheless, inoperative for that purpose, whien it recites that the wife joined in the execution thereof “for the purpose of relinquishing any right or claim of dower she may have had in said land.”
    4. Ejectment; when defendant can retain land with growing crops. In an action of ejectment, where there is a verdict in favor of ¡the plaintiff, in order for the defendant to obtain the benefit of retaining the lands recovered as provided by statute (Code, § 1552), it is necessary for him to make proof on the trial of the fact that he has a crop planted and growing on the land, and of the rental value of the premises; and where the case is tried on an agreed statement of facts which contains no recital as to a growing crop, the suggestion thereof comes too late if made just before judgment is rendered.
    Appeal from tlio 'Circuit Court of Madison.
    ' ‘Tried before the lion. H. C. Speake.
    This was a statutory action of ejectment, which was brought by the. appellees, Mary J. Pickens, Wiley Pick-ens, Edmund Pickens and others, against the appellant, Demps Burrows, to recover certain lands specifically described in the complaint. The suit was instituted on February 2, 1898. The 'defendant pleaded the general issue.
    Before the cause was tried, the death of Wiley Pick-ens, one of the plaintiffs, was suggested, and the order made in reference thereto was as follows: “In this cause the death of Wiley Pickens is suggested, and the cause is submitted to tbe court on an agreed statement of facts. The agreed statement of facte, under which the cause was submitted to tbe court for tbe trial without the intervention of a jury, disclosed the following facts: On January 10, 1880, W. R. Cobb and wife conveyed to Reuben Pickens tbe lands in controversy. On January 28, 1880, Reuben Pickens and Mary J. Pick-ens, his wife, executed a mortgage on the said lands to James J. Grayson. On January 18, 1886, Reuben Pick-ens and Mary J. Pickens executed another mortgage upon the same lands to the said James J. Grayson. Re"u-. ben" Pickens died before the institution of this suit. At the time of his death and’at the time of the execution of each of the mortgages to James J. Grayson, he occupied said lands as a homestead, that his wife and children resided thereon. Tlie property did not exceed $2,000 in value. Mary J. Pickens was tlie widow of Reuben Pickens, and tlie other plaintiffs are t'lie children of said Reuben and Mary J. Pickens, and tlie heirs at law of Reuben Pickens. On January 26, 1890, James J. Gray-son, the mortgagee, foreclosed each of the mortgages held by lum and at the foreclosure sale one Baker became the purchaser of the land, and James J. Grayson conveyed to him all the right, title, interest and claim acquired by him under the two mortgages. Baker then sold -and conveyed the lands back to James J. Grayson, and afterwards Grayson sold and conveyed tlie said lands to J. W. Grayson, who, by warranty deed of October 31, 1894, sold and conveyed said lands to the. defendant, Burrows, who, since the date of said sale and conveyance has been in tlie actual occupancy and possession of said land®, claiming them as his own. After the mortgage sale by Grayson to Baker, and the. reconveyance by Baker to him, plaintiffs rented the lands from J. J. Grayson, and 'after he conveyed them to J. W. Grayson, they rented from him, and finally removed from the lands before the conveyance, to the defendant. The two mortgages from Reuben Pickens and Mary J. Pickens to J. J. Grayson were made a part of the agreed statement of farts.
    The mortgage executed on January 28, 1880, although signed by Mary J. Pickens, was not separately acknowledged by her. The mortgage executed on January 18, 1886, contains the recital that “Mary J. Pickens, wife of said Reuben Pickens, joins in the execution of this mortgage, for the purpose of relinquishing any right or claim of dower she may have in said lands.” This mortgage was signed by Mary J. Pickens, and was acknowledged separate and apart from her husband.
    The trial of the case was had on May 25, 1899, but, tlie agreed statement of facta contained no recital with reference to the growing crop upon the land sued for. The bill of exceptions recites that when the court was about to announce the judgment in the case, “counsel for the defendants suggested that there was a growing crop on the land sued for, Nothing was said in agreed statement of facts about growing crops, ami plaintiffs objected to opening the case anew. The court stated that said suggestion came too late, 'and the court could make no order about it without the consent of the plaintiff, and the defendant duly excepted.” The court rendered judgment for the plaintiffs. The defendant appeals. It was assigned ais error that the 'court proceeded to judgment after the suggestion of the death of one of the plaintiffs, without there 'having been a revival in the name of lxis administrator or unless there had been a dismissal as to him of the suit; and that the court erred in refusing to act upon the suggestion as to the growing-crop on the lands, and erred in rendering judgment for the plaintiffs.
    ■Cooper & Foster and Daniel Grayson, for appellant,
    cited Evans v. Welch, 63 Ala. 250; (hites v. Hester, 81 Ala. 357; Garter v. Ghaudron, 21 Ala. 72; HarHnson v. Harrell, 19 Ala. 753; Bollard v. Maddox, 28 Ala. 32T; Seay v. McGormiclc, 68 Ala. 549.
    Thomas 0. Mapothbr^ contra.
    
    It is stated in the mortgage that the wife joins in its execution for the purpose of relinquishing- her dower right, and this- is insufficient to convey the homestead. — Thompson v. Sheppard, 85 Ala. 611; Long v. M'ostyn, 65 Ala. 543.
   Í8HA1ÍPE, J.

Upon the death of one of several parties plaintiff in an action of the class which may be prosecuted by the surviving plaintiff or plaintiffs the action does not abate, but under our statute — Code, § 38 — the action may either be revived or, upon the suggestion of the death made upon the record, it may proceed in the name of the surviving plaintiffs. The present action is of the class referred to; and there was no error in allowing the action to proceed after suggestion made of the death of Wiley Pickens without revival. Phoenix Ins. Co. v. Moog, 81 Ala. 335. It may be noted that no objection is shown to have been made to so proceeding, , (

Neither mortgage under which the defendant claimed was sufficient, to convey the, title to Reuben Pickens’ homestead. The first lacked the certificate of the wife’s separate examination which, under section 2034 of the Code,, was requisite, to give validity to such a conveyance.

The second mortgage', expresses the purpose for which Mrs. Pickens joined in to he that of relinquishing her right to dower. Under the authority of Long v. Mostyn, 05. Ala. 543, and Thompson v. Sheppard, 85 Ala. 611, such expression must be held to negative Mrs. Pickens’ intention to sign in token of her assent to the conveyance of the homestead right and to render her signature uneffective for the latter purpose.

Section 1552 of the Code provides that “if the defendant has a crop planted or growing on the premises', and the jury find for the plaintiff, they must also ascertain the rental value of the premises during the current year, and no writ of possession can he issued until the expiration of the year, if the defendant executes a _bond in double the amount of such rent, payable to the plaintiff, with surety approved by the clerk, conditioned to pay the rent so assessed at the expiration of the year.” To obtain the benefit of this provision it devolves on a defendant to make proof on the trial of the fact that he •has a crop growing or planted on the land, as well as of the rental value of the premises, for in the absence of such proof there can he no authority for the assessment of rental value. The statement of facts upon which it was agreed the case should he tried was silent as to the growing crop, and the effect of that agreement was to confine the proof to the agreed statement.

The judgment will be affirmed.  