Beard v. Johnson

• Decision Date: 26 June 1889
• Citation: 6 So. 383,87 Ala. 729
• Parties: BEARD v. JOHNSON.
• Court: Alabama Supreme Court

6 So. 383

87 Ala. 729

BEARD v. JOHNSON.

Supreme Court of Alabama

June 26, 1889

Appeal from circuit court, Coffee county; P. N. HICKMAN, Special Judge.

This is a statutory real action in the nature of ejectment, by John M. Beard against N. C. Johnson, to recover the possession of 120 acres of land.

The plaintiff rests his right to recover upon the title acquired by him at a mortgage sale of the land in controversy. On the trial, as shown by the bill of exceptions, the plaintiff introduced in evidence a mortgage executed by the defendant to one J. C. Henderson, which conveyed the lands in controversy. This mortgage was signed and acknowledged by the defendant, the mortgagor, but was not signed by his wife separate and apart from her husband, nor was there any acknowledgment to this effect on the mortgage. The indorsements on the said mortgage showed that it had been transferred by the mortgagee, and then retransferred by these transferees to one W. R. Copeland. The plaintiff then introduced in evidence a deed made by the said Copeland conveying the lands in controversy, under a foreclosure sale had under the mortgage, and here rested his case.

The bill of exceptions then states that "the defendant testified in his own behalf that at the time the said mortgage was executed he was a married man, and that the lands sued for were all the land he then owned; that he used and cultivated it in making a support for himself and family that he had rented out the cleared land on said tract sued for, except about eight acres, which he was cultivating himself; and that the same was then in the possession of the renter. He further testified that said lands adjoined a 60-acre tract of land belonging to his wife, upon which he and his family resided; that he lived on the 40-acre tract belonging to his wife, which adjoined the land sued for, and the other 20 acres belonging to his wife adjoined the said 40 upon which defendant resided." This being in substance all of the evidence, the court, at the request of the defendant, in writing, charged the jury that "if they believed the evidence they must find for the defendant." The plaintiff thereupon reserved an exception to this charge and now assigns the same as error.

H. L. Martin, for appellant.

STONE C.J.

Our statute, unlike former legislation in this state, and unlike the statutes in many other states, does not confine the exemption of the homestead to the head of the family. Section 2507, Code 1886, following the provision of our constitution, secures this right to "every resident of this state." The plaintiff in this action, Beard, claims the land in controversy as purchaser at mortgage sale,-the mortgage being executed by Johnson and wife in 1884. That mortgage was executed, acknowledged, and certified in sufficient form to convey lands not a homestead, but not sufficient to convey the homestead. The sole question in this case is whether the claim of homestead exemption set up by Johnson in the court below was a bar to the action. The trial court held that it was.

The Code of 1886 went into effect December 25, 1887. Section 2507 of that Code stands in the place of section 2820, Code 1876. The language of the later compilation differs from the former one, and from the provision of the constitution. Under the former the phrase "owned and occupied by any resident of this state" is expressed as one of the conditions of exemption. These words are omitted from section 2507, Code 1886. Whether this omission requires us to give to the language a different interpretation as to occupancy, or whether the word "homestead," and other words found in that section and in sections 2539, 2544, Code 1886, are tantamount to the adjective "occupied," we need not inquire in this case. It is possible, if not probable, that the phrase was omitted because it was considered superfluous. "Homestead," ex vi termini, means "the family seat or mansion." The source of...