Caldwell v. Pollak

• Decision Date: 17 December 1890
• Citation: 8 So. 546,91 Ala. 353
• Parties: CALDWELL v. POLLAK.
• Court: Alabama Supreme Court

8 So. 546

91 Ala. 353

CALDWELL v. POLLAK.

Supreme Court of Alabama

December 17, 1890

Appeal from circuit court, Macon county; JOHN MOORE, Judge.

Watts & Son, for appellant.

W F. Foster, for appellee.

STONE C.J.

In 1881, Pollak & Co. recovered a judgment against Amanda M Kelly in the circuit court of Macon county. Execution was issued on this judgment, and placed in the hands of the sheriff of that county, in less than a month after the judgment was rendered, and other executions were issued and placed in the hands of the sheriff every year, with the exception of the year 1882, up to and including 1888. Commencing with July, 1883, executions were continually in the hands of the sheriff, until the lot in controversy was sold by him, as after mentioned; and this, without the lapse of an entire term. Code, 1886, § 2894. Under the execution issued September 26, 1888, the sheriff on February 2, 1889 levied on the lot sued for in this action, but did not sell for want of time to advertise and make the sale. He so indorsed his return on the execution. On April 2, 1889 another execution was issued by virtue of which the sheriff renewed his levy on the lot, advertised it for sale, and on May 13, 1889, he sold it to the highest bidder, and Pollak, the appellee, became the purchaser, and received the sheriff's deed. It was shown that Mrs. Kelly resided on the lot and in the dwelling for 10 years before Pollak & Co. recovered their said judgment, and that she continued to so reside until the fall of 1888. At the date last mentioned she went to the state of Georgia, but whether with the intention of thereby changing her residence is not expressly shown. She died in January, 1889. This is the plaintiffs' chain of title. The continuous possession of Mrs. Kelly, running as the testimony shows it did for several years, raised the presumption of title in her, in the absence of countervailing proof. 1 Brick. Dig. p. 627, §§ 40, 41; Anderson v. Melear, 56 Ala. 621. And, if the lien attached during the life-time of Mrs. Kelly, her death did not impair it, or destroy the effect of the sale, there being no lapse of a term between the executions. Code 1886, § 2897; 3 Brick. Dig. pp. 451, 452, §§ 39, 48, 49. The plaintiff made a prima facie case for recovery. Under the first execution issued on the judgment against Mrs. Kelly, the lot in controversy was levied on. She interposed a claim of homestead exemption, and there being no contest of her claim, as provided by statute, (Code 1886, § 2521,) the levy was discharged. All other executions issued afterwards were returned "no property found," until the execution issued in September, 1888. That execution was in the hands of the sheriff when Mrs. Kelly died, (January, 1889,) and, as we have shown, was levied on the lot in February, 1889. Our exemption of the homestead from levy and sale under execution is during the life of the exemptioner, and no longer, unless there be a surviving wife or minor child or children, one or both. The defendant in execution in the case before us was a woman, and it is not claimed that she left a minor child surviving her. It follows that her claim of exemption was only a life-estate, and expired with her. Code 1886, § 2507, and note. A homestead exemption, actually and rightly interposed, has the effect in law of dividing the freehold into two quasi ownerships,-the one for life, and the other in remainder. The first, or life ownership, unless forfeited by abandonment of the possession, is as much beyond the influence of the execution as if it was the property of a stranger. Execution in the hands of a sheriff fastens no lien on property so held, neither on the life-estate or on the remainder. The exemptioner may sell the fee of property so held, and vest a good title in the purchaser, to the same extent, and with the same limitations on his power of disposition, as would be the case if his debt was not in execution, was not reduced to judgment. He may sell the entire property for a valuable consideration, if there is no fraud, actual or constructive, in the transaction, and the execution creditor, in assailing it, would occupy no vantage ground by virtue thereof. And as to the life-estate, if he has not forfeited it by abandoning the possession, he may dispose of it at his pleasure, with or without consideration, and his creditors cannot be heard to complain of this. It would not take from them any right the law gives them. Fellows v. Lewis, 65 Ala. 343; Wright v. Smith, 66 Ala. 514; Lehman v. Bryan, 67 Ala. 558; 3 Brick. Dig. p. 494 et seq. Applying the foregoing principles to the facts of this case, Pollak & Co. could claim no advantage as springing out of their judgment and execution, until the expiration of Mrs. Kelly's homestead exemption, whether caused by her death or by abandonment. If the homestead right continued until her death, then the execution became functus as to the house and lot, and as to all other property on which no lien had attached during her life-time. There being no lien during her life-time, it could not accrue afterwards. Code, § 2897. It is shown, as we have previously said, that Mrs. Kelly left the premises in the fall of 1888. She did not return, so far as the record inform us. She died in January, 1889. Upon the undisputed facts in this record, we may safely affirm that the premises sued for were unquestionably the domicile, the homestead of Mrs. Kelly, at least until she left the premises in the fall of 1888. A domicile once acquired is presumed to continue until a change facto et animo is shown. It is presumed to continue until another is acquired by actual residence with the intention of abandoning the former one; and the burden of proof lies on the party who asserts the change. 5 Amer. & Eng. Law, 865. Unless Pollak, the plaintiff below, satisfied the jury by the testimony that Mrs. Kelly, by leaving the premises, did not intend to return, but in fact and in intent abandoned the possession, with no intention of returning and resuming possession and occupancy, then he failed to show that the execution of Pollak & Co. ever acquired a lien on the property; failed to show a valid levy or sale; and failed to show any right to recover. To summarize: If it be not...