Emrich v. Gilbert Manufacturing Co.

138 Ala. 316 | Ala. | 1903

TYSON, J.

The affidavit of contest of claim of homestead exemptions, in this case, is conceded byr appellant’s counsel to contain one unassailable ground. The demurrer and motion inteiposed to it challenges it in iis entirely. Each was, therefore, properl j overruled.

The insistence that defendant’s motion to quash the levy of the execution should have been granted for want of diligence on the part of the contestant in the prosecution of the contest of the claim of exemptions is not sustained byr the record. The affidavit of contest was filed •r time, ami the cause was tried at the first term of the court after the return of the process. — Sections 2047 and 20.52 of the Code.

An adjourned term of the court is a mere continuation of the regular term. — Hundley v. Yonge, 69 Ala. 89. The motion was properly' denied.

The issues tendered byr the plaintiff and upon which the case was tried were, first: That t-lie lot in controversy was not used and occupied as a homestead when the execution was levied; second, that the value of the lot exceeds $2,000; third, that the plaintiff recovered a judgment against the defendant on the 21st day' of June 1898, in the sum of $375.50 and $13.55 costs; and on the 28th day of June, 1898, a certificate.of the clerk showing sav.l judgment was filed and registered in the office of the judge of probate; at that time, defendant owned an undivided one-third interest in the lot levied on and an undivided one-third interest in two other separate lots in the city of Mobile. None of said lots were used and occupied by defendant as his homestead at the time of said registration. Subsequent to said registration the defendant and his co-tenants partitioned said lots between them, and the defendant conveyed to his co-ten-tenants liis one-third interest in each of the other two lots and in consideration thereof, his two co-tenants each conveyed her one-third interest in the lot levied upon to the defendant. The 4th differs from the 3d only in the statement that neither of said lots other than the one levied upon was used and occupied by defendant as his homestead at the time of the registration of the certificate.

A general objection was interposed to the 1st, 3d and 4th issues, but no ground was stated. Indeed, we can see no possible available objection to either of them. They are entirely in accord with the averments of the affidavit- of contest and practically present the same issues as are presented by it; in a more elaborate form it is true. And perhaps the 3d and 4th contain a particularity of statements, in detailing the facts upon whirl) the contesant relies for a condemnation of the lot under the .execution, greater than is necessary. But be this as it may, no possible injury or disadvantage could have resulted to the defendant. Besides the forming of the issue or issues is a matter largely in the sound discretion of the court under whose direction it is made up.- — Section 2052 of the Code. “It is not intended to embarrass the proceeding by formal'pleading, and an issue is sufficient if broad enough to admit any competent evidence tending to show whether the property in contest oí* anv and what part of it is exempt as claimed.” Beckert v. Whitlock, 83 Ala. 130.

The 4th issue, (the 3d being found, in favor of the defendant, and, therefore, not necessary to be considered), as seems to be urged by appellant’s counsel, did not present immaterial or irrelevant matter. On the facts averred, if properly proven, the plaintiff has clearly established its right to condemn a two-thirds undivided interest in the lot levied on. Before the partition was had, the defendant’s right of homestead exemption only extended to his one-third undivided interest in this lot. His one-third interest in the other two was clearly subject to the plaintiff’s lien. In these Jots he had no homestead rights. Gould he by partition between himself and his co:proprietors enlarge his homestead rights by acquiring their interest in the lot in controversy? We think not. The rule on this subject, established by the great weight of authority, is that a partition, made without suit, provided it is fair, binds those holding incumbrances upon the undivided share of a tenant and 1ms the effect of transferring the lien from the undivided share to the share allotted in severalty to the debtor tenant, although the lien holder is not a party. — Freeman on Cotenancy and Partition, § 415; 21 Am. & Eng. Ency. of Law, (2d ed.), p. 1189 and note 3.

Where the partition is a judicial proceeding the statute regulates it, and by express provision the lien is made a charge only on the share assigned to the debtor tenant. — Section 3172 of the Code.

It would be a gross injustice to bind the plaintiff in judgment by the partition, thereby transferring his lien to the lot held in severalty by defendant and destroying his right to condemn any part of the two lots held in severalty by the other parties to the division, and then allow the defendant to relieve the lot set apart to him of the lien by interposing his claim of homestead to it. The law does not tolerate such a result. The property allotted to him in the division, simply takes the place of his undivided share in the whole, subject to the same charge, incumbrance or lien that his individual share was subject to. And -when, as here, a portion of the undivided property was not the homestead, the allotted share cannot, as against a lien holder, become a part of the homestead lot, although it adjoins it, at least to the extent of the shares of his co-tenants acquired under the partition.

The debtor tenant should not and can not be allowed to discharge a valid lien upon his undivided share by simply separating his share from his co-tenants.

Another theory of defendant, which is wholly untenable, seems to be that the issue should have been restricted to the enquiry whether the lot levied on was his homestead at the date of the levy of the execution, instead of tlie date when the lien of the judgment attached. Indeed the leading idea, as shown by objection to testimony and otherwise, seems to have been that because, since the partition and even before, the defendant had been using and occupying this iot in connection with the one on which the larger portion of his dwelling is built, that it had become a part of his homestead notwithstanding the contestant, prior to the division, had a lien upon his undivided interest in the other two lots, which lien upon the partition, was transferred to the share allotted to him in this one. And doubtless it is upon this theory that he'bases his contention that the contestant has ho right to show that, at the date it acquired its lien, the lot levied upon and the two others were owned by him and his sisters in common, and that there had been a partition of these lots, in May, 1900, by which he became entitled in severalty to the lot in question.

There were matters stated and properly stated in the 4th issue, and the court ruled correctly in admitting proof of them. The only objection interposed to the introduction in evidence of the certificate of the judgment was that it is immaterial and irrelevant. It was clearly material and relevánt to the issue. The objections were properly overruled. The question as to whether the original certificate is the best evidence is not raised by either of them. The motion to exclude this certificate “because it is shown that it is not a portion of the files of the probate judge’s office” proceeds upon the idea that it can never be withdrawn, even temporarily, without destroying the lien of the judgment. We find in the statute creating the lien no requirement that the certificate of the judgment shall remain on file or among the papers in the office of the judge of probate. All that the statute requires is that it shall be filed and “registered” (recorded) by the judge of probate in a book to be kept by him for that purpose. — Acts, 1898-99, p. 34. After it has been recorded, it is of no moment what becomes of it so far as the lien created by the act is concerned. The endorsement on the certificate by the probate judge shows that it was filed and recorded in his office, and this is no where disputed in the evidence. Whether these facts could properly be proven in this way against a proper objection, we express no opinion. We see no error in allowing the judgment to be introduced in evidence.

What we have said sufficiently disposes of all the objections insisted on to the introduction of testimony without considering them in detail. The issue designated as the 4th having been affirmatively sustained by the evidence, and that without dispute, the first, written instruction requested by contestant was properly given. This being true a two-thirds interest in the lot levied on is correctly condemned to tlie satisfaction of contestant’s execution, which, of course, is the proper process for the enforcement of the judgment lien. — Acts, 1898-99, p. 34; Howard v. Corey, 126 Ala. 283, 290.

As to whether the remaining third interest in the lot levied on is subject to condemnation was under the evidence a matter for the determination of the jury, under the issue designated number 2, which alleged that the property claimed as exempt exceeds in value $2,000. The defendant having all along owned this interest in the lot and having used and occupied it in connection with the lot on which the main part of his residence is situated, and both being covered by the claim of exemptions, it is clearly exempt unless the value of this interest and the other lot exceed two thousand dollars. This, as we said, was a matter of dispute.

There was no error in the giving of the written charge No. 2 requested by contestant, or in refusing the several written charges requested by defendant.

The insistence that contestant has no right to have the execution levied upon a part of the homestead, finds no support in Marx v. Threet, 131 Ala. 340 cited as sustaining it.

Affirmed.