Powers Clothing Co. v. Smith

• Decision Date: 17 April 1919
• Docket Number: 8 Div. 163
• Citation: 202 Ala. 634,81 So. 576
• Parties: POWERS CLOTHING CO. v. SMITH.
• Court: Alabama Supreme Court

81 So. 576

202 Ala. 634

POWERS CLOTHING CO. v. SMITH.

8 Div. 163

Supreme Court of Alabama

April 17, 1919

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Bill by the Powers Clothing Company, a corporation, against J.B Smith, to declare a lien upon land and to sell same to satisfy a judgment obtained by complainant against one J.C Carpenter. Decree for respondent, and complainant appealed. Affirmed.

Cooper & Cooper and Addison White, all of Huntsville, for appellant.

R.E Smith, of Hunstville, for appellee.

ANDERSON C.J.

Section 4192 of the Code of 1907 provides:

"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."

This section and its progenitor have been fully considered and discussed in the recent case of Fuller v. American Supply Co., 185 Ala. 512, 64 So. 549, wherein it was held that notwithstanding the declaration, which was prima facie evidence of an animus revertendi, the said declaration would not preserve the homestead, unless there was, in fact, a present and continuing intent to return. So the question in this case is: Did Carpenter, at the time of leaving his home and moving on his wife's place at Toney, and up to the time he sold the place to J.B. Smith, intend to return? The filing of the declaration was prima facie evidence of his intention to return, and, in the absence of evidence to the contrary, stamped upon the place the brand of a homestead. "A domicile, once acquired, is presumed to continue until a change facto et animo is shown." Caldwell v. Pollak, 91 Ala. 357, 8 So. 547.

The proof does not show that Carpenter purchased another home, or that he owned the one to which he removed, so as to indicate a change of the old homestead for the new one, as the one to which he removed belonged to his wife, and could not have been claimed by him under the law as his homestead. Not only did the declaration establish a continuing prima facie intent to claim the homestead by Carpenter and evince an animus revertendi, but there was proof tending to show that the wife's place at Toney was more suitable and convenient to him in the discharge of his duties as a deputy sheriff,...