55 So. 503 | Ala. | 1911
The important question for decision in this case is whether or not an actual or. forma] 'claim and selection of a homestead, as is provided for in our statutes (Code 1907, § 4168 et seq.), is necessary
If the provisions of the Constitution and of the statutes on this subject had been the same, during the en
As before stated, these constitutional provisions, with amendments, were brought forward into the Constitutions of 1875 and 1901' (Const. 1875, art 10, § 2; Const. 1901, § 205). Evidently on account of these provisions, the Code of 1876 provided, among other things, that “the homestead of every resident of this state, not exceeding one hundred and sixty acres of
So it seems that the effect of the constitutional and statutory provisions above referred to was, ex proprio vigore, to exempt the homestead (if such there was as a distinct entity) from levy and sale under judicial process, and to place it as much beyond the influence of an execution as if it were the property of a stranger. Execution in the hands of the sheriff, in such cases, fastens no lien upon the property so held, either on the life estate or on the remainder. The exemptioner in such case could sell the land or property so held, and invest a good title in the purchaser, to the same extent and with the same limitations on his power of disposition, as would be the case if his debt was not in execution, or was not reduced to judgment. It has been repeatedly held by this court that in such case he could sell the entire property for a valuable consideration, and that there would be no fraud, actual or constructive, in the transaction. In fact, it was said by this court, in the case of Pollak v. McNeil, 100 Ala. 203, 13 South. 937, that the question of whether a party who owns and oc
At the time of the decision in the case of Bell v. Davis, there was no exemption of a homestead; but the statutes provided merely that certain property might he retained for the use of the family- — to be selected by the head of the family within certain specified limitation’s. So, under the statutes at that time, a claim or selection was necessary; whereas, since the Constitution of 1875 and the Code of 1876, while a claim and selection was still provided for, it was only necessary when the property desired to be claimed as exempt had to he identified and selected from other property not exempt. On the' other hand, if the owner did have personal or real property in excess of that exempted to him by the Constitution and statutes, then, of course, the duty evolved upon him to select that which the law allowed him as exempt, in order that the remainder could he subjected by his creditors. The exemptioner would not he allowed to hold a mass of property, in excess of exemption rights, and thus prevent his creditors from subjecting any of it to sale under legal process against him.
As to the necessity of making a formal selection of the homestead, it has been uniformly held that the same rule prevails that governs in the selection of personal property or chattels which are exempt. And speaking of the necessity and propriety of making a formal claim as to personal property exempt, Brickell, C. J., said: “There can be no doubt that, if a debtor owns personal property exceeding in value $1,000, the law casts upon him the duty of selecting that which he will retain, exempt from levy and sale under legal process for the payment of debts. * * * But if he has not personal property, exceeding in value $1,000, a selection is unnecessary. There is neither room nor reason for it. The law intervenes and attaches the right of exemption, without the -doing of any act on his part — attaches the exemption as absolutely and unconditionally as if the particular property was specially designated and declared exempt. For the policy and spirit of the Constitution is that personal property shall be absolutely exempt, unless the debtor owns of that species property exceeding in value $1,000.” — Alley v. Daniel, 75 Ala. 405, 406.
The provision of the Constitution of Michigan (Const. 1908, art. 11, § 2) is very similar to that of our Constitution; it being as follows: “Every homestead not exceeding forty acres of land, and dwelling house thereon and appurtenances, to be selected by the oimer thereof, shall be exempt.” The Supreme Court of Michigan, in construing the provision, where the homestead did not exceed in area or value that fixed by the Constitution and statute, held that there was nothing to select from; that the question was the entire thing or nothing; that in such case no selection in any sense of the term was required, by either the Constitution or the statute. The court held that the phrase “to be selected” signified to choose or take some particular part ór number from a greater; to take, by preference from among others; to pick out; to cull; that it did not express a mere election or option whether to take anything or nothing; to insist
This is undoubtedly the interpretation we have given to our constitutional provision. And where the whole tract owned and occupied by the debtor does not exceed the area mentioned in the Constitution, and is admittedly within the prescribed valuation, the law, in the absence of any proof, must presume the acceptance by the debtor of the benefit conferred by the Constitution, to the full amount of the exemption; this being the ground upon which the acceptance of a grant is presumed — because of benefit to the grantee. The Constitution and statutes contemplate a selection only when it is necessary to bring the homestead within the limitations as to area or value, and as a method of separating it from a tract of larger area or of greater value, and to thus define its boundaries. — Beecher v. Baldy, 7 Mich. 488; Thomas v. Dodge, 8 Mich. 51.
It should be observed that in this case we are speaking of the necessity of making, filing, or interposing a claim of exemption in order' to prevent the title from passing by execution or judicial sale of the exempt property, and not of the necessity of such a claim in order to support an action against an officer or the plaintiff in process for levying upon or taking such exempt property under legal process against the exemptioner. The propriety or necessity of making, filing, or interposing the claim on the part of the exemptioner is not the same in the two cases, because we have statutes which are intended to fix the rights and liabilities of the parties and officers executing the process as to exempt property. We are not in this case treating of the duties or liabilities of officers or plaintiffs in the process of levying upon or taking exempt property under such process.
Affirmed.