Taylor v. Gallaha

103 So. 457 | Ala. | 1925

The contest of exemptions was tried by the court without a jury. The testimony was ore tenus, in open court. The finding was that the property is the homestead of the defendant and exempt from sale under the execution.

There was no error in overruling objection to the question, "Mr. Gallaha, were there times when you could not get work in Sheffield?" and other questions to like import. These questions, and the answers thereto, explained why he went elsewhere temporarily to work — explained the temporary nature of a caretaker's residence in the house levied upon.

There was no error in explaining the claimant's relations to Mrs. Myers, his caring for her cows, and showing the refusal of her offer of another home. These questions and answers tended to explain his temporary absence from the old home and his keeping the little house of Mrs. Myers "to look after her stock until" she could "get a place to put them." These and like questions, to which objections were urged, illustrated contestant's acts as to his intention or abandonment vel non of his homestead. Lucky v. Roberts, 211 Ala. 578, 100 So. 878. So, also, there was no error in asking the claimant, "Have you owned any other home during the 18 years since you bought this little place?" and, "Have you at all times claimed this as your home?" where his furniture was kept, etc. These questions called for the facts on which to afford an inference as to abandonment vel non of the homestead. Lucky v. Roberts, supra. The contract for letting a part of the house for an indefinite term did not destroy the right of homestead, and was consistent with his intent to retain the same as a homestead. Miles v. Miles,211 Ala. 26, 99 So. 187; Fuller v. American Supply Co., 185 Ala. 512,517, 64 So. 549.

The refusal of the mother to go to a new home that was offered by the daughter tended to illustrate the intent of the husband and wife as to the home in question, when considered with the fact that they left a part of their (or her) furniture in two rooms of their home when the other part of the house was temporarily occupied by a caretaker or tenant at will.

There was no error in the examination of the witness Dudley tending to show the terms of the tenancy temporary in nature. The arrangement or contract of Dudley with contestant was given under the rule declared and necessities of temporary withdrawals from the homestead in Fuller v. American Supply Co., 185 Ala. 512, 64 So. 549, and Lucky v. Roberts, 211 Ala. 578,100 So. 878. The questions propounded to Mrs. Myers, and her answers thereto, when considered as a whole, do not present reversible error. They explained the temporary absences of the father and mother from the "old home."

We are of opinion that there was no reversible error committed on the trial of the contest of the homestead exemption. The finding of fact was within the rule of Hackett v. Cash, 196 Ala. 403, 72 So. 52.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.