137 Ala. 199 | Ala. | 1902
The evidence shows, without conflict, that the defendant, being the owner of 573 acres of land, conveyed the same, on the 28th September, 1896, to W. E. Slappy, the plaintiff, and one James M.
Again, it is well settled, that even where there is a disconnected tract of land, not contiguous to the homestead, which is bona fide and habitually used as a part of it, and the two tracts together dn not exceed the area of value allowed, they may both be selected in the shape in which they already exist,; and further, that a purchaser from the husband of a large tract including the homestead, is required to, take notice as to what part of the land, the husband may afterwards choose to select. — Jaffrey v. McGough, 88 Ala. 650; Marks v. Wilson, supra; Lyon v. Hardin, 129 Ala. 643.
Here, the 114 acre tract sued for was not disconnected from the main body of the land, but was a part of it; the defendant’s residence being about a half mile east therefrom.
A map was introduced in evidence showing the homestead selection made by the defendant. He also introduced his declaration of claim of homestead exemption of 160 acres of the original 573 acre tract of land described in the first conveyance above mentioned, which he filed in the office of the probate judge, on the 12th October, 1898, duly subscribed and sworn to by him, describing the 160 acres selected and claimed by him
It will be seen by the accompanying diagram or map, that the lands claimed as exempt, are irregular in shape, and not selected in reference to the lines and subdivision of the government surveys, taking a forty-acre subdivision as a unit of measure. Mr. Thompson, in his work on Homesteads and Exemptions, after referring to a disposition on the part of some courts to limit the country homestead to the ■ single tract on which the dwelling house stands, and to deny its existence in separate tracts, although used in connection with the home farm for supplying it .with timber, or for tillage, although some courts have held opposing views, says: “We shall also trace a growing disposition on the part, of the courts, in determining what is to he included in the homestead, to take into consideration the legal subdivisions of land, such as public surveys and recorf^»^y«yqi^*g)lats; and a person in laying off his hoayegtoaf| wlll permitted to gerrymander th/uo,llLC different publi&tourveys, making a tract irreg
In the case before us, the selection seems to have been made in violation of this wholesome rule, as much so, possibly, as in the cases cited. The 30 acres selected is a narrow strip running clear across • the section, nearly to the center of the 40 acres lying on the extreme southeast of the half section, and there, 15 acres are carved out of the southeast quarter of this 40 acres, the narrow strip- representing in likeness a long -stem of a pipe, with the 15 acres as its bowl. The 114 acres, sued for lies on the west side of tfaé section, and consists of two forties in the south half of the section, and 34 acres in the southwest quarter of the north half of the; next abutting; 40 acres above these. Why the selection was thus made, is not shown, but it is on its own face palpably arbitrary and capricious, and cannot be approved as a lawful selection of homestead claimed under section 2041 of the Code. - The declaration of claim bv defendant filed undgj*<>"'fePaf"^tioca should have been excluded as ejh&mie. Without.'-?118
Reversed and remanded.
The dotted lines include the lands selected as a homestead.