The opinion
BROWN, J.
(dissenting).
“When the homestead is in a city1, town, or village, the limitation in the constitution and statutes relates to the value, and not the number and extent, of the lots.” Marx v. Threet, 131 Ala. 340 , 30 So. 831 , 832 ; Tyler v. Jewett, 82 Ala. 93 , 2 So. 905 .
The averments of 'the bill, the purpose of which is to have sold a part of the lot for division among the heirs at. law of the husband of the appellant, clearly show that the husband, prior to his death, resided on the lot as a homestead, and the only fact stated, upon which the conclusion that the part sought to be separated and sold did not constitute a part of the homestead, is that it was separated from the other by a fence, and had on it four three-room houses. There is no averment as to the value of the entire lot, or as to the use of that part sought to be sold; and aside from the fact that the averments as to that part of the lot the pleader intended to designate as the homestead are uncertain of meaning and should be construed most strongly against the pleader, we are of opinion that it was incumbent on the pleader to show by positive averments, that the part sought to be sold was not used in connection with the residence as a part of the homestead, and that the lot exceeded in value $2,000, and the mere implied negative legal conclusion is not sufficient. To say. that the 40-foot strip is appellant’s homestead is not to say that the other part of the lot is not a part of the homestead, but at most leaves this to mere intendment or implication.
A bill in equity must set forth “every material averment of fact necessary to complainant’s right of' recovery. So complete must be the averments
of fact,
that on demurrer, or decree pro confesso, the court can, without evidence, be able to perceive and affirm that complainant is entitled to the relief prayed. *■ * * Allegations, admitted or proved, are the only premises which will uphold a chancery decree.” McDonald v. Mobile Life Ins. Co., 56 Ala. 468 ; Westbrook v. Hayes, 137 Ala. 572 , 34 So. 622 . Proof without allegations is as fatal as allegations without proof.
While a demurrer or decree pro confesso confesses the facts pleaded, they do not confess mere legal conclusions. Jackson Realty Co., Inc., v. Yeatman, 219 Ala. 3 , 121 So. 415 .
We are therefore of opinion that the decree of the circuit court should be reversed for error in overruling the demurrer to the bill.
GARDNER and BOULDIN, JJ., concur.