46 Ala. 35 | Ala. | 1871
The appellant was sued in ejectment by the administrator of her husband’s estate, to recover the possession of rooms in a building which he had leased for a year, and which she claimed the right to retain as his homestead, or dwelling house where he resided next before his death, under Article XIY, section 5, of the State constitution, and section 1680 of the Revised Code.
The widow’s quarantine, as given by section 1630 of the Revised Code, pertains exclusively to premises of which she is dowable, else, as she may retain them until her dower is assigned her, if she has no dower there would be no limit to her right of retention.
The XIYth article of the constitution preserves the distinction heretofore observed between real and personal property. It defines a homestead to be land, or a lot in a town, city or village, to be selected by the owner there of, with the dwelling and appurtenances thereon, &c. The interest of a widow in the estate of her husband is her distributive share of his personal property, which she takes absolutely, and her life estate in his real property. A lease for a year, or term of years, is personal property. The homestead which the widow of the owner is to have the rents and profits of under section 5, is the homestead described in section 2 of Article XIY of the constitution.
The judgment is affirmed.
Appellant filed the following petition for a re-hearing:
The appellant respectfully petitions the court for a rehearing, and presents the following argument in support of the application:
1st. The question is entirely new in this State. Arising under our new and recently adopted constitution, there is in this State as yet no precedent to guide in its decision. It is difficult to perceive the consequences of a decision of a question so new and so unprecedented. It would seem,
2d. The opinion delivered does not consider either the argument or authorities in the written brief of appellant’s •counsel, and it is possible that those arguments and authorities may not have been considered by all the judges. They certainly were not presented to the other judges by reading the opinion in consultation.
The argument of the court in the opinion is very brief, and is substantially this : That a homestead is defined by Article XIV, section 2, of the constitution; that by that definition there can be no homestead without ownership of the land; that homestead, in the 5th paragraph of that article, means the same thing with' homestead in the 2d paragraph ; and that therefore the widow can not be entitled to a homestead where the husband had only a leasehold estate and was not the owner of the land.
Now, it is respectfully submitted, that homestead is not ■defined in paragraph 2. The first clause exempts from execution a homestead not exceeding forty acres of land, to be selected by the owner thereof, (that is, of the homestead) ; and not in any town, city or village; or in lieu thereof, any lot in the city, town or village, owned and occupied by a resident of the State, and not exceeding two thousand dollars in value.
It will be perceived that the second paragraph provides, first, for the exemption of a homestead, without defining it, and then it authorizes the substitution of a lot in a city or town, owned and occupied, at the option of an owner. The meaning of this paragraph is, that one having a homestead may, instead of the homestead, take a lot owned and occupied by him. One may own and occupy a lot, and yet that lot may not be a homestead. He may reside elsewhere, and use the lot as a shop or place of business. In a case of this sort, where a man has a homestead, and besides owns and occupies a lot, he may at his election give up the homestead and take the lot which he owns and occupies.
It is apparent that homestead is not defined in the sec
We refer to our argument already submitted, to show that homestead has a meaning wide enough to include a leasehold estate, and is not confined to land which was owned.
This case was not orally argued.
The conclusion attained by the court as to the meaning of homestead will operate with great injustice. It will convert a widow on rented premises into a trespasser in the instant of the husband’s death.
That a man may be the owner of a homestead without being the owner of land, is, as we think, shown in our original brief in this case.
The following response was made by—
The court decides that the judgment-rendered in this case at this term is correct, and that the application for a re-hearing must be denied.
My own opinion is, that the provisions of Article XIV of the State constitution are not at all influenced by any impress of the term homestead, as a home, habitation or dwelling place. The second section reserves from his debts two thousand dollars worth of any real estate which the owner thereof may select, whether it has previously been his home, or dwelling place, or not. If he can make a better use of it than to reside upon it, he is at liberty to do so. The first section prescribes the least amount of personal property owned by a citizen which shall not be subjected by the legislature to the payment of his debts, and the second, the least amount of real estate. If this construction be correct, a leasehold can not be the subject of a homestead, because it is personal property.
The construction contended for by the appellant’s counsel would involve changes in the law which the legislature only is authorized to make. And they would depend solely on the association of an ideal home with every fugitive or temporary abiding place.
