Dowling v. Horne , 117 Ala. 242 ( 1897 )

McCLELLAN, J.

If Horne, instead of renting his entire farm for the year 1895, and taking up his own residence elsewhere, had in the first instance rented a part of the place and of the dwelling to Haynes, and continued himself to live in other part of the dwelling house and to cultivate other part of the land, and to have his family there, there could, of course, be no question but that he would be entitled to homestead against the" plaintiff’s judgment and execution. Can it make any difference that after letting the place to Haynes and while' residing elsewhere, he made a new contract with the latter by which he was to resume possession of the land and residence in part, and not jointly with but in severalty as respects Haynes, and that he thereupon moved back on the place and into the house and took up his permanent residence there? We think not. This modification of the lease and resumption by Horne of his residence and domicil upon, and occupation and possession of, the land in question as a home, made it to all intents and purposes his homestead in as full and just a sense as if he had never abandoned it; and this character was impressed upon it before the plaintiff had. acquired any lien on the property or even had obtained a judgment against the claimant. It is the well defined policy of our laws to secure homes to our citizens even against the just demands of honest creditors. To this end it is no fraud upon such creditors for the citizen to' convert property liable to execution into a homestead not so liable even though his purpose be to avoid the subjection of such property to the payment of his debts ; and, in view of this beneficent and wise policy, it can be of no consequence in the present case that the claimant resumed his residence on the land in question for even the expressed purpose, along with intent to make it bis present home, of forestalling any proceedings by ■plaintiff looking to the subjection of the land to her debt.

Upon the foregoing considerations we eoncur in the view taken by the trial court; and its judgment must be affirmed.

Affirmed.