45 Ala. 168 | Ala. | 1871
The point, at issue is, which is the superior right, the debtor’s claim to the exemption of his homestead, or that of his creditor to the payment of his judgment ?
Notwithstanding Adams, by his contract, had a lien which excluded Fitzpatrick’s privilege of exemption against him, and between him and Eay he might have been required to sell the land in parcels so as to preserve the rights of the subsequent creditor; yet, the right of exemption came in next to the contract lien. It was prior to the lien of the judgment, and even if not, would have prevailed over it.— Watson v. Simpson, 5 Ala. 233; Hale v. Cummings, 3 Ala. 398; Lamar v. Gunter, 39 Ala. 324; Eev. Code, §§ 2880, 2884.
If a judgment creditor may put his debtor to the selection of his homestead, and sell a portion of his property not protected by it, and then require a mortgagee of the whole to apply the homestead first to the satisfaction of his mortgage, he would deprive the debtor of his homestead, which he could not do if there was no mortgage. How can the mortgage thus enlarge his remedy ?
The decree is affirmed.