Bland v. Putman , 132 Ala. 613 ( 1902 )

McCLELLAN, C. J.

— In tlie opinion originally banded down in this case, we declared tliat tlie registry of the judgment in tlie case of Bland against Putman was inoperative as a registry importing a lien under the statute for that neither the certificate of the clerk of the circuit court nor the registry in the office of the judge of probate, showed who was the owner of the judgment, citing Duncan v. Ashcraft and other cases so holding with reference to the original statute and its codification. On application for rehearing our attention is drawn to the act of February 22, 1899—Acts 1898-9, pp. 31-5 —amending the Code and dispensing with tlie requirement that the registry of a judgment shall show who is the owner of it. Under this statute the registry of Bland’s judgment shown in this transcript was valid, and the judgment was a, lien on the land now claimed by Putman as a homestead in effect on and after May 26, 1899.

The evidence showed that Putman rented the land to Biddle for the years 1897, 1898 and 1899 severally. I-Te claims to have reserved a part of the dwelling on the land for use as his residence in each of these rentals. There was some evidence adduced in support of this claim — enough to carry the question to the jury and render the affirmative, charge for plaintiff improper, but not enough to stand against a motion for a new trial on verdict for the claimant. Unless such reservation was .made, no claim of homestead exemption as provided by section 2065 of the Code having been filed by Putnam before he rented the place to Biddle and moved from it, he must be held .to have abandoned [p's homestead in the premises. —Pollak v. Caldwell, 94 Ala. 149; Blackman v. Moore-Handley Hardware Co. 106 Ala. 458; Gist v. Lucas, 122 Ala. 557; Land & Rentz v. Boykin, 122 Ala. 627; Porter v. Harrison, 124 Ala. 296. Whether the reservation, if there rvas any, Avas for the purpose of continued occupation as a home was to he gathered from the tangible facts and circumstances in evidence: Putman should not have been al-loAved to testify that he reserved a part of the house “to live in.” And this was, in view of the conclusion to which we are mow come, that the registry of the judgment was efficacious, the only issue in the case, the evidence being without conflict to the effect that the registration. of the judgment was perfected before his return to the place on May 26th or 27th, 1899.

The court’s instructions to the jury and some of its rulings upon instructions requested by the plaintiff, are not in harmony with the foregoing views. We deem it unnecessary to point out its errors in this connection more particularly.

As to rulings upon the competency of evidence: As indicated above, we think the court erred in allowing Putman to testify that he made the reservation he speaks of of a part of the house for the purpose of living in it. We are unable to see the legal pertinency of his testimony as to the physical condition of his wife. That also should have been excluded. The other rulings upon admissibility of proposed evidence are free from error.

Reversed and remanded.