Marx v. Threet , 131 Ala. 340 ( 1901 )

TYSON, J.

Plaifitiff claims to have derived title to the lots in controversy by purchase at a sale of them under the power of sale contained in a mortgage executed by their owner. These lots are designated in the mortgage and deed to plaintiff as lots 58 and 59 in the city of Demopolis. In the complaint they are described as lots 59 and 59. This variance is sufficient justification of the action of the court in excluding the deed and mortgage as muniments of title so far as lot 58 is, concerned.

However, independent of this variance, there is no doubt, under the evidence, that this lot constituted as much a part of the homestead of the mortgagor prior to, at the time of and subsequently to the execution of the mortgage as did lot 59 upon which the dwelling house was located. The two lots adjoin and are enclosed by the same fence. There was situate upon lot 58, the barn, cow-shed and stable, which were used by the mortgagor in connection with his dwelling, for the comfort and sustenance of himself and family. The mere fact that it is designated by a map or by conveyances as a separate lot from 59 is of no consequence. When the homestead is in a city, town or village the limitation in the constitution and statutes relates to the value and not the number and extent of the lots. — Tyler v. Jewett, 82 Ala. 93.

It is also without dispute that the value of the lots and improvements thereon does not exceed $800. It seems to be conceded that all of lot 59 was a part of the homestead of the mortgagor except that portion upon which is standing a storehouse in which the mortgagor did a mercantile business. This portion, it is insisted, is not a part of the homestead on account of the use made of the house. It appears that this storehouse was erected upon tliis lot after the premises had become impressed with the character of a homestead. Its erection did not increase the value of the property beyond the value limited by the constitution and statutes. Nor does it necessarily impair the uses and enjoyment of the premises as a homestead. Manifestly the dominant use of the lots was that of a dwelling place. The use of the storehouse for the selling of merchandise under the facts of this case did not convert the premises into a place incidental or secondary only to its habitation as a home, any more than the cultivation of a portion of the premises as a garden would destroy their character as a home place.

The facts of this case clearly differentiate it from the •cases of Bell v. Anniston Hardware Co., 114 Ala. 341, Turner v. Turner, 107 Ala. 465, and Garrett v. Jones, 95 Ala. 96. In Watts v. Gordon, 65 Ala. 546, one of the buildings claimed as exempt by the defendant in connection with his dwelling was a house used as a butcher -shop in connection with his trade as a butcher. The court -sustained the claim. It is true this- point was not discussed, but it was necessarily involved in the decision.

The use of the word “persuasion” instead of “threats” in the separate and apart acknowledgment of the wife is a fatal defect and renders the mortgage a nullity as .a conveyance of the title to the lots. — Motes v. Carter, 73 Ala. 553; Strauss v. Harrison, 79 Ala. 324; Smith v. Pearce, 85 Ala. 264; Daniels v. Lowery, 92 Ala. 519.

Affirmed.