Kaster v. McWilliams , 41 Ala. 302 ( 1867 )

A. J. WALKER, C. J.

The only question of this ease is, whether a house and lot, not occupied by tbe owner, but rented out, can be exempt from levy and sale. Is the exemption dependent upon the fact, that the family has the place in actual use ? The exemption of real property is for the use of the family, and must be such as may be selected by the head of the family, to include the homestead. We think the statute clearly contemplates that there should be an the actual use by the family. This is demonstrated by the provision that the exemption is for the use of the family — that the retention is for the use of the family. The renting of land may be a source of profit, which contributes to the support of a family; but that is not the sort of use intended. The land, when rented, does not, of itself, in the use of the thing, supply “ the comforts, wants, and requirements of the family.” The statute contemplates the use of the thing, not of its profits, or of an income derived from it. The family could only be said to be in the use of land rented, when it enjoyed the money arising therefrom. The money thus derived is not exempt; and it would be absurd to say that the land is in the use of the family, because the rent goes to maintain it, and is therefore exempt; and yet the rent, when received, is liable to the claims of creditors. The principle that the thing exempted must be so in the use of the family as to supply its comforts, wants, or requirements by such use, is settled in Allman v. Gann, 29 Ala. 240.

Reversed and remanded.