Horn v. Wiatt , 60 Ala. 297 ( 1877 )

STONE, J.

The decree of the chancellor in this cause was rendered May 27,1876. In it he ordered, “ that in case the register sells the lands, defendant W. C. Wiatt may claim an exemption of $500 in said lands; and if said claim be made according to law, the register shall omit said exemption from sale.” This is the first time exemption or homestead is mentioned in the proceedings, although the bill was filed January 12, 1874. Under this order of the chancellor, W. C. Wiatt filed his sworn petition, addressed to the register, dated and filed June 26,1876, in which he claimed homestead of eighty acres, and prayed the appointment of commissioners, disinterested freeholders, to lay it off. The commissioners were appointed by the register, July 17, 1876; and on the 22d of the same month, they reported to the register that they had allotted to the petitioner the lands he asked for, embracing the homestead, and an additional one hundred and thirty acres, making two hundred and ten acres. These proceedings were never brought to the notice of the chancellor, so far as we are informed, and have never received his approval or disapproval. We consider it unnecessary to comment on the irregularity of these proceedings.

The debts on which the judgments were recovered, which the present bill seeks to enforce, were contracted in 1858, and the homestead exemption must be graduated by the law as it then stood.—See Wilson v. Brown, at present term; Taylor v. Anthony, December term, 1876. In 1858, the homestead exemption was governed by section 2462 of the Code of 1852, as amended by the act of February 12, 1858— Pamph. Acts, 48. The homestead then exempted was in quantity not to exceed eighty acres, and in value not to exceed $500. The quantity was increased, provided the value did not exceed $500, to three hundred and twenty acres, by the act of January 30, 1860; and these several statutes are embodied in section 2880, subdivision 4, of the Bevised Code..

But, when the present case was decided, and when the application was made and granted for homestead allotment, all statutes granting homesteads, prior to the enforcement of the constitution of 1868, had been long repealed. See section 17 of the act “ to regulate property exempted from sale for the payment of debts,” approved April 23, 1873; Pamphlet Acts, 64. Thus the law stood, until those statutes were re-enacted, February 9, 1877, and made applicable to debts contracted before the State constitution of 1868 became operative. It is thus shown that, for near four years, there were no statutes in force in this State securing homesteads from seizure and sale under execution, provided the debt or liability was older than the constitution of 1868. This results from certain plain principles. Exemption only exists by virtue of the law. It is given by the law, and can be taken "away by the law. And when the law which confers it is repealed, the right fails, for it has nothing to uphold it.—See Boyd v. Harrison, 36 Ala. 533; Ware v. Owens, 42 Ala. 212; Daily v. Burke, 28 Ala. 328. And, under the rulings of this court, following the decision of the Supreme Court of the United States, any material increase of exemption of property from the payment of debts, is unconstitutional, and inoperative as against debts previously contracted, because its tendency is to impair the obligation of the contract.—See Gunn v. Barry, 15 Wallace, 610; Wilson v. Brown, at the present term ; also, Nelson v. McCrary, at the present term.

It results from what we have said, that that portion of the chancellor’s decree which we have copied above is erroneous, and it is here vacated and annulled. In all other respects, his decree is affirmed. It results, also, that the proceedings had before the register, on the petition to have homestead allotted, are, in all respects, irregular.

We concur with tbe chancellor in bolding that tbe deed from W. C. Wiatt to John F. Wiatt was made with intent to delay, hinder, and defraud tbe creditors of tbe former, and that tbe latter knew of such intention, and contributed to its consummation. Tbe testimony intended to prove tbe consideration, considered in connection with tbe account with Sims, Houston, Sims & Yidmer, and Harrison & Co., falls very far short of proving an actual and bona fide bargain and sale from father to son; and tbe other testimony weakens much tbe Wiatts testify to, and tends strongly to sbow tbe transaction was simulated and fraudulent.

On tbe appeal by tbe complainants, the decree of tbe chancellor is reversed, and a decree here rendered, as above indicated, at tbe cost of W. C. Wiatt. On the appeal by John F. Wiatt, tbe decree of tbe chancellor is affirmed.