Brock Candy Co. v. Elson

• Decision Date: 10 April 1924
• Docket Number: 7 Div. 430.
• Citation: Brock Candy Co. v. Elson, 211 Ala. 244, 100 So. 94 (Ala. 1924)
• Parties: BROCK CANDY CO. v. ELSON.
• Court: Alabama Supreme Court

100 So. 94

211 Ala. 244

BROCK CANDY CO. v. ELSON.

7 Div. 430.

Supreme Court of Alabama

April 10, 1924

Rehearing Denied May 15, 1924.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

An execution in favor of the Brock Candy Company being levied upon certain real estate of I. Elson, a claim of homestead exemption was interposed. On trial of the contest of homestead there was judgment for defendant, and plaintiff appeals. Affirmed.

Motley & Motley, of Gadsden, for appellant.

Goodhue & Lusk, of Gadsden, for appellee.

BOULDIN J.

This is a contest of claim for homestead exemption. The facts are not in dispute, and may be thus summarized: The property, a house and lot in the city of Gadsden, has been continuously occupied bye the debtor as his homestead since 1916. The value is $3,500. In March, 1922, the plaintiff obtained a judgment against the debtor and caused it to be duly registered. At that time the property was subject to two valid mortgages, both superior to the homestead right, one for $1,900 and one for $650. In October, 1922, the debtor desiring to pay off the senior mortgage negotiated a loan of $1,800 from a third person for that purpose, to be secured by a first mortgage on the same property. To that end the holders of the second mortgage agreed to take a new mortgage made subject to this first mortgage. Both these new mortgages were executed of date November 1, and filed for record November 4, 1922. Thereupon the old senior mortgage was paid off, indorsed satisfied in full, and surrendered on November 4, 1922. The second mortgage was indorsed satisfied in full and surrendered November 3, 1922. The entire matter of satisfying the old mortgages, making and recording the new ones, was by several contemporaneous acts, all one general transaction. Thereafter the plaintiff raised execution on the registered judgment, and levied upon the property. The debtor filed his claim of homestead exemptions. The plaintiff contested on the ground that the claim was excessive.

The trial court sustained the claim of the defendant debtor. Hence this appeal.

The point made by appellant is that the lien of the registered judgment is superior to the mortgages thereafter given and recorded; that, the pre-existing mortgages having been satisfied and canceled, the excess value of the lands over $2,000, the homestead exemption, is now subject to plaintiff's judgment.

The homestead right is a favored one in Alabama. It is safeguarded by constitutional and statutory provisions. It is part of the public policy of the state to protect the shelter and abiding place of the citizen and his family, within the limits and area defined, until alienated, waived, or abandoned in the manner fixed by law. The homestead of every resident, to the extent of any interest he may have therein, not exceeding $2,000 in value or 160 acres in area, is exempt from levy and sale under execution or other process for the collection of debt. Code 1907, § 4160. If the interest of such resident is subject to mortgage or other incumbrance, the amount of such incumbrance must be deducted from the value of his entire interest in fixing the value of the...