PHILLIPS v. NORRIS

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Docket Number

6 Div. 656.

Attorney(S)

Coleman D. Shepherd, of Jasper, for appellants. An option to sell and convey a homestead, even though executed and separately acknowledged by the wife, is void and unenforceable against both the wife and husband who executed it. Moses v. McClain, 82 Ala. 370, 2 So. 741; Lyon v. Hardin, 129 Ala. 643, 29 So. 777; Clark v. Bird, 158 Ala. 278, 48 So. 359, 132 Am. St. Rep. 25; McGuire v. Van Pelt, 55 Ala. 345; Pettus v. McKinney, 56 Ala. 41; Snedecor v. Freeman, 71 Ala. 140; McClendon v. Equitable Mortgage Co., 122 Ala. 384, 25 So. 30; Marks v. Wilson, 115 Ala. 561, 22 So. 134; De Graffenried v. Clark, 75 Ala. 425. Davis Curtis, of Jasper, for appellee. The amount of the consideration for the tract and the uses to which it was put and adapted took away from the tract its homestead character, and the option is enforceable. Garrett v. Jones, 95 Ala. 100, 10 So. 702; Bell v. Anniston Hardware Co., 114 Ala. 341, 21 So. 414; Turner v. Turner, 107 Ala. 465, 18 So. 210, 54 Am. St. Rep. 110; Laughlin v. Wright, 63 Cal. 113; Masberg v. Granville, 201 Ala. 5, 75 So. 154; Blackburn v. McLaughlin, 202 Ala. 434, 80 So. 818; Eastis v. Beasley, 214 Ala. 651, 108 So. 763.

Judges

BROWN, J.

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PHILLIPS et al. v. NORRIS.

BROWN, J.

This appeal is from a decree overruling the defendants' demurrer to the bill. The point taken is that the allegations of the bill show that the property involved is the defendants' homestead.

The facts alleged show that the primary adaption of the buildings on the property is to business purposes, and that its primary use is for conducting a mercantile business; that the use of the rooms at the back of the main building was a mere incident to the business use of the property. Garrett Sons v. Jones, 95 Ala. 96, 10 So. 702; Moseley v. Neville, 221 Ala. 429, 129 So. 12; Bell v. Anniston Hdwe. Co., 114 Ala. 341, 21 So. 414; Turner v. Turner, 107 Ala. 465, 18 So. 210, 54 Am. St. Rep. 110.

The demurrers to the bill were not well taken and were properly overruled.

Affirmed.

ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.

PHILLIPS et al. v. NORRIS.

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