Fuller v. American Supply Co.

• Decision Date: 12 February 1914
• Citation: 185 Ala. 512,64 So. 549
• Parties: FULLER v. AMERICAN SUPPLY CO.
• Court: Alabama Supreme Court

64 So. 549

185 Ala. 512

FULLER v. AMERICAN SUPPLY CO.

Supreme Court of Alabama

February 12, 1914

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

Action by the American Supply Company against J.H. Fuller. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Barnett & Bugg, of Monroeville, for appellant.

Hybart & Hare, of Monroeville, for appellee.

SAYRE J.

There is but one question of any consequence in this case, and that is whether under the evidence admitted by the court and that offered by the appellant, but rejected in the court below the court could properly say as matter of law that appellant was not entitled to a homestead exemption as against appellee's execution.

Appellant defendant in execution, had a dwelling upon the land in question, a parcel slightly in excess of one acre in area where he lived with his family prior to the year 1911. In the spring of 1911 he removed his family to a dwelling house--some 150 yards away--owned by a corporation of which he was an officer and stockholder, and by which he was employed at its sawmill. At no time prior to September 12 1912, the date upon which appellee's execution was levied, did he file a declaration of claim of homestead exemption under section 4192 of the Code. In the meantime one Parker occupied the property in suit for about 30 days, but on what terms does not appear. He may have been subject to summary ouster at any time. According to the testimony offered by appellee, the dwelling house was allowed to fall into a state of delapidation and presented an appearance of decay. On the other hand, appellant proved that he had cultivated "the garden and land" around the house, that he frequently visited the property, and had kept some part of his household goods stored there, and offered to prove that his servants had occupied the servant house on the lot in suit, and that the house to which he had removed was more convenient to his employment at the mill.

Appellant seeks to bring his case within the influence of the decision in Dicus v. Hall, 83 Ala. 159, 3 So. 239, the principle of which has been repeatedly recognized by this court. Beard v. Johnson, 87 Ala. 729, 6 So. 383; Hodges v. Winston, 95 Ala. 514, 11 So. 200, 36 Am.St.Rep. 241; Jaffrey v. McGough, 88 Ala. 648, 7 So. 333; Thacker v. Morris, 166 Ala. 395, 52 So. 73. The principle of Dicus v. Hall is that detached parcels of land, collectively not in excess of the limit, may be claimed as exempt where they have been owned and occupied by the same person as one and the same homestead, and as a direct source of family support. But we are of opinion that the doctrine of that case can have no application to the facts of this case for the reason that the property in suit appears to have been a lot in the town or village of Nadawah, whereas the doctrine of that case is to bring an outlying tract of agricultural land, cultivated for the production of supplies for the "comfort, wants, and requirements" of the family, within the exemption of rural lands provided by the constitutional and statute law of the state. The rule has no application to noncontiguous urban lots. Tyler v. Jewett, 82 Ala. 93, 2 So. 905; Seabury v. Hemley, 174 Ala. 116, 56 So. 530.

Appellee, on the other hand, contends that this case must be determined in his favor on section 4192 of the Code, and cites Land v. Boykin, 122 Ala. 627, 25 So. 172, as conclusive authority for his interpretation of the section and the rights of the parties. We think there is a misapprehension of the purpose and effect of the statute and the meaning of the decisions in which it has had consideration.

Of course the statute has no operation in a case where the owner quits his homestead permanently, that is, without a present and continuing intention to return, because in such case the homestead is forfeited without regard to declaration filed; in such case the declaration of claim would be a fraud upon the statute, and ineffectual. Beckert v. Whitlock, 83 Ala. 131, 3 So. 545. In this state prior to 1877 a leasing for a term was considered an abandonment of the homestead for the reason that by creating a leasehold term in another the owner deprived himself of the power to return during the term. Boyle v. Shulman, 59 Ala. 566; Kaster v. McWilliams, 41 Ala. 302; Stow v. Lillie, 63 Ala. 257. But in 1877 the Legislature, by an act the title of which foretold a purpose "to protect exempted property." (Acts 1876-77, p. 43), provided "that when a person has a right of homestead, *** a temporary quitting or leasing the same for a period of not more than twelve months at any one time shall not be deemed to be an abandonment of it as his homestead," if he shall file a declaration, etc. Section 26 of the act. This section of the act was literally transcribed into the Code of 1876 as section 2843. In all later Codes, beginning with 1886 (section 2539) it has been given this form: "When a declaration of claim to a homestead exemption has been filed in the office of the judge of probate, leaving the homestead temporarily, or a leasing of the same shall not operate an abandonment thereof, or render it subject to levy and sale; but the right thereto shall remain the same as if the actual occupancy thereof had continued."

In arriving at the meaning and effect of this statute in its original and revised forms, the purpose declared in the title, the body of related law, and the settled policy of the state, must be consulted. One unmistakable effect of the statute, recognized all along, has been to enlarge the rights and privileges of homestead owners, in that they are permitted to let their homesteads to rent on condition that they file the declaration. But temporary quittings, where there is no letting to rent, are upon a different footing. The privilege of homestead exemption is, by the Constitution and laws of the state, extended to town lots and country acres "owned and occupied" by residents of the state. Occupancy is essential. Before the statute in question it was never supposed that a homestead exemption could be lost by temporary withdrawals, as, for example, where the owner leaves for the purpose of educating his children, to recuperate his health, to travel in foreign parts, to attend a camp meeting, to engage temporarily in trade, to seek work, to raise a crop, or to hold official position, intending all the while to return. Occasions for some such absences come to nearly every one, and they were not regarded as constituting an abandonment. In such cases the owner was regarded in law as in the actual occupancy of his homestead. Any other interpretation of such absences would make of the homestead, not a refuge, but a prison. An owner, absent on such occasion, has all along been commonly regarded as an actual occupant, and he must be still so regarded unless the statute has clearly provided to the contrary. A homestead, once acquired, is presumed to continue until a change, facto et animo, is shown. Murphy v. Hunt, 75 Ala. 438; Caldwell v. Pollak, 91 Ala. 357, 8 So. 546; Huffman v. Smyth, 47 Or. 573, 84 P. 80, 114 Am.St.Rep. 938, 8 Ann.Cas. 678. These principles have been made familiar by the previous decisions of this court, but they have been referred to because necessary to give point to our conclusion.

We have examined many of our cases, and in all of them in which it has been held that the owner forfeited ipso facto, his exemption by an absence intended to be temporary, he had let his homestead for a term. This was so even in Land v. Boykin, supra, though in that case there was a reservation of a part of the premises, namely, the dwelling, orchard, and garden. In that case the court seems to have attached no importance to the reservation; but a different view of the effect of a like fact, with like surroundings, was taken by the court in the later case of Bland v. Putman, 132 Ala. 613, 32 So. 616, where it was held sufficient to take the question of intention and the case to the jury.

It must be conceded, also, that in Porter v. Harrison, 124 Ala. 296, 27 So. 302, the homestead claimant was decreed to have lost his right, although it did not appear that he had let his place to rent during his absence; but it seems clear that the court there proceeded on the theory--indeed, the language of the court is--that the claimant had established his residence elsewhere, had even registered as a voter and voted in another precinct, and for that reason his effort to re-establish his lost homestead in the place he had left by filing a claim of exemption was of no avail. The controlling principle of the...