Glover v. Bass

50 So. 125 | Ala. | 1909

MAYFIELD, J.

Appellant brought his action against appellee, on account, in the justice of the peace court of Washington county, obtained judgment, and had execution issued thereon, Avhich execution was placed in the hands of the constable. The execution proper, the writ, was on one sheet of paper, and the bill of costs on another; the tAvo being pinned together only. The constable made his' indorsement upon the sheet Avhich contained only the bill of costs. A part of this indorsement Avas to the effect that defendant had no personal property subject to the process, and that levy had been made upon the S. E. % of the N. E. % of section 1, tOAvnship 8, range 2 W., as the property of the defendant. This process Avas then returned to the justice court, from where it issued. The justice thereupon transmitted the process, together with all other papers, to the circuit court, as required by section 4681 of the Code. In the circuit court, at the proper time, these papers (so certified) plaintiff made the basis of his motion, praying the sale of the 40 acres of land levied upon.

After the levy, but before the motion or proceeding-in the circuit court, the defendant duly made and filed in the probate office of Washington county his claim of exemptions — among other things claiming the particular 40 acres of land upon which the levy was made. The plaintiff thereupon made and filed a contest of that claim of executions, which contest was brought into the circuit court, and thus became a part of the motion for the sale. The defendant demurred to several grounds of the contest, which being sustained, the plaintiff took a nol. pros., with a bill of exceptions. This order of nol. pros., was, however, during the term set aside on plaintiff’s motion, and a trial of the contest was had; the court giving the general affirmative charge for the defendant. From the judgment rendered, plaintiff appeals.

It is insisted earnestly by the appellee that the levy was void, because the indorsements were a necessary part of it, and that as they were on a sheet of paper separate from the writ proper, being only pinned together, one was no part of the other. There is no- merit in this contention. The law does not require the execution to be on one sheet of paper’, and not on two. If on two, it does not direct how the two shall be fastened— whether pinned (as was the case here), glued, fastened with library paste, or with any of the numerous patented brads, clasps, or- pointed fasteners. The-writ gets its validity from the authority issuing it, and from Avhat is written on it, and not by virtue of the mode or means by which the sheets are fastened together. Except as to neatness and durability, the writ gets no efficacy from the glue or fastener by which its sheets are held together.

On the contest of exemptions, it seems, the plaintiff examined the defendant and proved that the land in question was a part of his homestead, or was used in connection with the 40 on which he resided as a part of his homestead. The plaintiff introduced a deed, executed by the defendant, conveying lands adjoining the 40. in question. This conveyance was void- as to the two-thirds interest attempted to be conveyed to his children, because the land was at the time his homestead, and because'his wife did not join therein, or acknowledge the same, as required by the statute. This the defendant sought to avoid by introducing in evidence, over the objection of the plaintiff, a deed, executed after the levy and after the claim of exemptions was filed by him, purporting to convey a part of the lands in question from his wife to himself. The court allowed all this evidence over the objection of the respective parties.

The homestead right may attach to any possessory interest in land. The fee is not necessary to support it. The defendant might have had a homestead right in this land, though he had conveyed a one-third interest in adjoining lands to his wife 10 years before. The case is thus differentiated from the case of Beard v. Johnson, 87 Ala. 729, 6 South. 383. None of this .evidencé could benefit the plaintiff contestant. A husband may have a homestead interest in the lands of his wife as against his creditors. — Reeves v. Peterman, 109 Ala. 368, 19 South. 512. The evidence in this ease, under any phase of it, showed beyond a doubt that the land in question was a part of the defendant’s homestead, whatever title he may have had thereto. It was not subject to levy, and consequently the judgment rendered was the only proper one, and no errors of the trial court can be availing to reverse it.

The judgment appealed from must be affirmed.

Affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ.-, concur.