Dicus v. Hall, Hooper & Co. , 83 Ala. 159 ( 1887 )

STONE, C. J.

— Dicus, tbe appellant, bad owned and occupied as a residence a small tract of land, some fifty-seven acres, upon wbicb be bad some twenty-five acres cleared and in cultivation. He bad occupied it as a borne for more than twenty years. Several years before tbe debt was incurred, under wbicb these proceedings were bad, be purchased an additional eighty acres of land, separated from tbe former by an intervening tract six hundred yards wide. On tbis latter purchased tract be bad some twenty acres cleared, and bad on it stables and a crib. From tbe tract last purchased be obtained timjber and fire-wood for tbe borne place proper, and tbe two places were cultivated in common, and be drew bis sustenance and home supplies alike from each place. On tbe eighty-acre tract there was a tenant bouse, and be sometimes rented a part of it to tenants, working on shares; tbe tenant and Dicus’ hands working the lands together, and not separately. The two tracts were worth much less than two thousand dollars.

In 1884, Dicus incurred a debt, less in amount than one hundred dollars. This debt was put in judgment before a justice of the peace, and under execution issued upon it, the constable levied on the eighty acres of land, “for want of personal property to satisfy the execution.” Dicus interposed his claim of homestead exemption. The question was raised in the Circuit Court, in opposition to a motion made there for an order to sell the land, that the property was part of the homestead, and as such exempt from levy and sale.

Our statute — Code of 1876, §2820 — exempts from levy and sale, etc., “the homestead of every resident of this State, not exceeding one hundred and sixty acres of land, and not exceeding two thousand dollars in value, and the appurtenances thereon, owned and occupied by such, resident.” There is no other qualification, except that it shall not be “ in any city, town or village. A different provision is made for the residents of cities, towns and villages.

This is the first time this question has come before us. In Perkins v. Quigley, 62 Mo. 498, speaking of their statute, it wao said: “ The only restrictions concerning homesteads, in the statute, relate to the quantity and value of the land; and the parcels of land composing it need not be contiguous, provided they are used in connection with each other.” So, in Buxton v. Dearborn, 46 N. H. 43, the ruling was, that “a small piece of land, on which hay is cut for a cow kept at' a house where a man lives, may be regarded as part of his homestead, though the land is separated from the house and a mile distant, provided the house and land together do not exceed five hundred dollars in value, and the land is used in connection with the house to furnish food for the cow.” Thompson on Homestead, § 102; Greely v. Scott, 2 Woods, 657, note; Hubbard v. Canady, 58 Ill. 425; Stevens v. Hollingsworth, 74 Ill. 202; Gregg v. Bostwick, 33 Cal. 220; Hoitt v. Webb, 36 N. H. 158; H. & Gr. Nor. R. R. Co. v. Winter, 44 Tex. 597; Tyler v. Jewett, 82 Ala. 93.

The testimony shows that the land in controversy was occupied and cultivated in common with the tract on which the appellant resided, and that the two lots were a common source of family support. On this testimony, unrebutted, it was part of the homestead.

Beversed and remanded.