¶1 (dissenting). The statute authorizing this proceeding is practically the same now as it was at the time of the death of petitioner’s husband, and we entertain the view that as the widow, or her alienee, has been in possession of the property since the death of the husband, and the rights of no third persons have been affected, the lapse of time does not bar this proceeding. We are further of the opinion that the sale of the lands by the widow does not bar her of this proceeding, for she still has an interest in upholding the warranty of title in her deed. The reasoning of *504 the court in Tartt v. Negus, supra, we think, tends to support our conclusion.
¶2 We are of the opinion that under the authorities of Headen v. Headen, 171 Ala. 521, 54 South. 646; Jones v. Stokes, 179 Ala. 579, 60 South. 280; Fuller v. Am. Supply Co., 185 Ala. 512, 64 South. 549, cited in the majority opinion, the petition should have been allowed as to the homestead, but the exception to so much of the commissioners’ report1 as set aside the lot in Gadsden should have been sustained, and that the decree in this respect only should have been reversed.