Fuller v. Whitlock

• Decision Date: 02 May 1893
• Citation: 99 Ala. 411,13 So. 80
• Parties: FULLER v. WHITLOCK ET AL.
• Court: Alabama Supreme Court

13 So. 80

99 Ala. 411

FULLER v. WHITLOCK ET AL.

Supreme Court of Alabama

May 2, 1893

Appeal from chancery court, Cullman county; Thomas Cobbs Chancellor.

Bill by E. L. Fuller against W. R. Whitlock, administrator, and others, to enjoin the sale of a property under execution, and to quiet title thereto. From a decree for defendants complainant appeals. Reversed.

Brickell Semple & Gunter and Geo. H. Parker, for appellant.

HEAD J.

In 1882, Charles A. Beckert owned and occupied, as his homestead, lot 403, in the town of Cullman, Ala. In March of that year he removed from Cullman to Decatur, Ala., and was there engaged in the service of the United States. On October 30, 1882, he and his wife conveyed the lot by deed to H. P. McIntire for the recited consideration of $500. On April 20, 1883, McIntire conveyed the lot by deed to Mrs. Ida M. Beckert, who was the wife of said Charles A., for the recited consideration of $500. On November 16, 1886, Mrs. Beckert and her husband, the said Charles A., conveyed by deed to the complainant, Mrs. E. L. Fuller, a part of said lot, for the recited consideration of $400, and Mrs. Fuller went into immediate possession and occupation of the part so purchased, and so continued up to the filing of this bill. In November, 1881, the appellee W. L. Whitlock obtained a judgment in the circuit court of Cullman county against said Charles A. Beckert for the sum of $437.60 and costs, upon which execution regularly issued, on December 23, 1881, to the sheriff of that county, and thereafter other executions were regularly issued, without the lapse of a term, until November, 1883, when one was issued and levied by the sheriff on the said lot No. 403, as the property of the defendant therein, the said Charles A. Beckert. On November 27, 1877, Beckert, who then owned and actually occupied the lot as his homestead, made his declaration in writing, verified by his oath and signed by him, wherein he described the said lot, and claimed the same as his homestead, and as exempt from levy and sale under execution or other process for the collection of debt, and filed the same in the office of the judge of probate of Cullman county for record, and on the 7th day of December, 1877, the same was duly recorded. Again, on the 28th day of February, 1882, he made, and filed and had recorded in the same office, another and similar declaration and claim of homestead in and to said lot. Whitlock, the plaintiff in execution contested these claims of exemption by affidavit duly made under the statute, and the matter of the contest depended in court until May 1, 1887, when, upon trial in the circuit court, judgment was rendered in favor of the plaintiff, Whitlock, condemning the lot to the satisfaction of the execution, which judgment, it seems, was subsequently affirmed by this court on appeal. Beckert v. Whitlock, 83 Ala. 123, 3 South. Rep. 545. Thereafter, on the 17th day of January, 1888, an order of sale and a fieri facias issued on said judgment to the sheriff of said county, who levied the latter on said lot, and was proceeding to advertise and sell the same under the processes in his hands, when this bill was filed by Mrs. Fuller to enjoin the sale of that portion of the lot she had purchased, and to protect and quiet her title to the same. At no time prior to the sale and conveyance of the lot to McIntire on October 30, 1882, nor at that time, was it worth more than $2,000, the limit of value allowed under our homestead laws.

The case presents but a single question. Was the lot in question still the homestead of Charles A. Beckert when he conveyed it to McIntire, or had he theretofore abandoned it as a homestead? It is not denied that he actually occupied it as the home of himself and family up to March, 1882, and that during that month he left the place, and went to Decatur and engaged as a gauger in the service of the United States. Section 2843 of the Code of 1876, which was in force at the time of these transactions, reads as follows: "When a person has a right of homestead under this chapter or any other section relating to exemptions, a temporary quitting or leasing the same for a period of not more than twelve months at any time, shall not be deemed to be an abandonment of it as his homestead; but if he shall make and file the declaration and claim, as herein provided, it shall remain subject to same right of homestead as if he had continued in the actual occupancy thereof." It is shown without dispute that Beckert did not lease the place for a period of more than 12 months, but, on the contrary, that he rented a part only of the house to a tenant, by the month, and kept his furniture and effects in another part of the house. It is shown, also, that he had not been absent from the place as long as 12 months when he sold to McIntire. The question then arises, was his quitting the premises temporary or permanent? which means, did he quit with the intention of returning within 12...