64 So. 549 | Ala. | 1914
There is but one question of any consequence in this case, and that is whether under tbe evidence admitted by thé court and that offered by tbe appellant, but rejected in tbe court below, tbe court could properly say as matter of law that appellant was not entitled to a homestead exemption as against appellee’s execution.
Appellant seeks to bring his case within the influence of the decision in Dicus v. Hall, 83 Ala. 159, 3 South. 239, the principle of which has been repeatedly recognized by this court. — Beard v. Johnson, 87 Ala. 729, 6 South. 383; Hodges v. Winston, 95 Ala. 514, 11 South. 200, 36 Am. St. Rep. 241; Jaffrey v. McGough, 88 Ala. 648, 7 South. 333; Thacker v. Morris, 166 Ala. 395, 52 South. 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
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 South. 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 South. 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
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, ix> at
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 South. 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 South. 302, the homestead claimant was
Fuller v. Whitlock, 99 Ala. 411, 13 South. 80, was a case in which the owner left his homestead to engage in the service of the United States. He had duly filed his declaration of exemption with the judge of probate, and had been absent for less than 12 months, having the intention of returning, as the court found on the testimony. ' In the meantime he had rented, out a part of his dwelling to a tenant by the month, but kept his furniture. and effects in another part of the house. The rights of the parties accrued while the Code of 1876 was in force. The right of the homestead claimant was upheld; but Judge Head appears to have been of the opinion that it would have been forfeited had he not intended to return within 12 months. However, the expression of that opinion was not necessary to a decision of that case; it was unsupported by authority, and, so far as we are informed, has never been followed, though the case has been cited to other points. Judge Stone, to the contrary, said in Scaife v. Argall, 74 Ala. 473, that the act made an exception as to actual occupancy, meaning that the act relieved the exemptioner of the necessity of an actual occupancy upon compliance with its terms and conditions. But as-we have seen, the owner had always been considered as in the actual occupan
The statute in its present form in the Code has still further enlarged the privileges of the owner in respect to letting his homestead to rent by removing the limitation of 12 months. This change in the law is unmistakable, as we have said, and must be given effect. It is in accordance with the expressed purpose of the title of the act. The arrangement of the grammatical members of the sentence which constitutes the section has also been changed, and there have been slight changes in verbiage. But “no rule of statutory construction rests upon better reasoning than that, in the revision of statutes, alteration of phraseology, the omission or addition of words will not necessarily change the operation or construction of former statutes. The language of the statute as varied, or the legislative intent to change the former statute, must be clear before it can be pronounced that there is a change of such statute in construction and operation.” — Landford v. Dunklin,
Statutes on the subject of homestead and other exemptions have always received a liberal construction in furtherance of the humane constitutional and legis-. lative pux’pose. Considering this section of the Code in view of the policy elsewhere uniformly followed by the Legislature and the courts, and in conxiection with the antecedent law, we are satisfied that it was not the intention of the statute, in the form to which it has been reduced by the revisers of the Code, to make the filing of a declaration with the probate judge an indispensable condition upon which the owner of a homestead may have the protection of his exemption during temporary absences in which he intends to return, and continuously keeps it within his power to do so. To so construe the statute would be to’add to the burdens of “actual occupants,” while conferring the benefit of the exemption upon lessors whom the statute brought under the protection of the Constitution with some degree of
The question of intention in cases of this character is generally a question for jury decision in which the element of the lapse of time during which the owner has remained away from his homestead plays a considerable part, though it is not conclusive unless prolonged beyond all reason. On the evidence in this case it. was a question of inferential fact Avhether appellant in quitting his homestead intended then and continuously thereafter to return, or whether, having no such intention, he at any time prior to the levy of execution abandoned, facto et animo, and so forfeited, his right of homestead in the property in suit. This question, on the case as it noAV appears, should have been submitted
Reversed and remanded.