Lehman, Durr & Co. v. Bryan , 67 Ala. 558 ( 1880 )

SOMERYILLE, J.

— If the property sued for in this action was the homestead of Henry Wechsler at the date of the deed made by him to his wife, and as such exempted from liability to execution for debts, the conveyance of it, even though voluntary, would not be frandulent as to creditors. Such property cannot be the subject of a fraudulent conveyance, for the reason that the rights of no creditor can be prejudiced by it.' — Fellows’ Adm’r v. Lewis, MSS.; Bump on Fraud. Con. p. 268; Thomp. on Homesteads, §§ 411-12.

The practical question presented for our decision is, do the facts stated show an abandonment of the homestead, and its consequent loss by forfeiture ? Under the constitutional and statutory provisions in force at the time of the transaction, actual occupancy was necessary to support a claim of homestead exemption. Before the enactment of section 2843 of the Code of 1876, which provides that the' temporary quitting or leasing of a homestead, for a period of not more than tioelve months at any one time, shall be deemed an abandonment of it, and such lease or renting was held to operate as a forfeiture of the right of homestead. — Koster v. McWilliams, 41 Ala. 302.

' Temporary absence, however, is not necessarily an abandonment. The animus revertendi of the owner is a material element in the determination of the question. This may be arrived at by circumstances and conditions attending the removal, including the declarations of the party accompanying the act, manifesting an intention of temporary or permanent absence, as the case may be. Declarations made advantageous to the declarant after the rights of creditors have intervened are entitled, however, to but little, if any weight. Donley v. Ayres, 23 Cal. 108; Thomp. Homesteads, § 270.

In the present instance, the premises claimed as a homestead were rented out before the existence of any statute permitting it. The owner removed, with his family, from the county, “ intending to return if his wife’s health improved, but never did return to, or occupy said house and lot.” While the property continued to be so leased to a tenant, on August 15, 1877, Wechsler filed and recorded his exemption claim, and on the same day, made a voluntary conveyance of it to his wife, for the declared purpose of “ securing a home to his wife and children, in case any accident should befall him.” The purpose to return was on a contingency which might never happen. It was, therefore, an abandonment for the present, with the possibility of a future change in purpose. The animus revertendi was not a present intention existing at the time of the removal, but a mere possible, or at most probable, future purpose. Under the past decisions of this court, the homestead exemptions was forfeited, the facts constituting a clear case of abandonment-. — Stow v. Lillie, 63 Ala. 257; Boyle v. LeGrand & Co. 59 Ala. 566; McConnaughy v. Baxter, 55 Ala. 379; Code, § 2843.

Independently of the above considerations, even though the conveyance in question were valid, it would be sustained only in a court of equity. There was no transfer ot' the legal title effected by the deed from Wechsler to his wife, such as would enable the defendant in ejectment to resist a recovery at law.- McMillan v. Peacock, 57 Ala. 127; Gamble v. Gamble, 11 Ala. 966; Puryear v. Puryear, 12 Ala. 13.

The conveyance was fraudulent and void as against the appellants who purchased at the execution sale.

The court below erred in the charge given at the instance of the defendants, and also in refusing to give the charge requested by the plaintiffs. The judgment is reversed, and the cause remanded.