Slappy v. Hanners , 137 Ala. 199 ( 1902 )

HARALSON, J.

The evidence shows, without conflict, that the defendant, being the owner of 573 acres of land, conveyed the same, on the 28th September, 1896, to W. E. Slappy, the plaintiff, and one James M. I-Ianners; that the defendant ivas- a resident citizen of this State at the time, and resided and liad his dwelling house on a part of the land, but not on the 114 acres here sued for, and that said deed was executed without the examination of defendant’s wife separte and apart from her husband, in the manner providing for the conveyance of the homestead, under the provisions of section 2034 (2508) of the Code. Under repeated decisions of this court, this deed was, void as a conveyance of the homestead, and had no more effect than if it had never been executed, and in no way acts as an estoppel against the husband from afterwards claiming his homestead exemption in the land. — McGhee v. Wilson, 111 Ala. 615, 619; Marks v. Wilson, 115 Ala. 561; Cowan v. S. R. Co., 118 Ala. 560; Hayes v. S. H. B. & L. Asso., 124 Ala. 663; Lyon v. Hardin, 129 Ala. 643.

Again, it is well settled, that even where there is a disconnected tract of land, not contiguous to the homestead, which is bona fide and habitually used as a part of it, and the two tracts together dn not exceed the area of value allowed, they may both be selected in the shape in which they already exist,; and further, that a purchaser from the husband of a large tract including the homestead, is required to, take notice as to what part of the land, the husband may afterwards choose to select. — Jaffrey v. McGough, 88 Ala. 650; Marks v. Wilson, supra; Lyon v. Hardin, 129 Ala. 643.

Here, the 114 acre tract sued for was not disconnected from the main body of the land, but was a part of it; the defendant’s residence being about a half mile east therefrom.

A map was introduced in evidence showing the homestead selection made by the defendant. He also introduced his declaration of claim of homestead exemption of 160 acres of the original 573 acre tract of land described in the first conveyance above mentioned, which he filed in the office of the probate judge, on the 12th October, 1898, duly subscribed and sworn to by him, describing the 160 acres selected and claimed by him as exempt, which selection embraced the 111 acres sued for. This paper was objected to as evidence on the several grounds, that it was immaterial and incompetent evidence; that the selection attempted was not a proper one, — not a proper designation of any homestead, nor did it show that defendant was entitled to homestead exemption in the lamb described, the same being arbitrary and capricious. Before its admission, it was1 shown that the lands embraced therein, claimed as exempt, were worth less than $2,000; that defendant was a married man and resided in this State in 1887, at the time said first named deed was executed, and since; that his wife had not been examined separate and apart from defendant, her husband, in the manner required by statute to convey the homestead, and that at the. time of the execution of the first named deed and ever since, the defendant resided on a part of the lands embraced in said claim of homestead exemption claimed by him; his dwelling being about one-half of a mile east of the lands sued for. This paper was admitted in evidence over the objections of defendant.

It will be seen by the accompanying diagram or map, that the lands claimed as exempt, are irregular in shape, and not selected in reference to the lines and subdivision of the government surveys, taking a forty-acre subdivision as a unit of measure. Mr. Thompson, in his work on Homesteads and Exemptions, after referring to a disposition on the part of some courts to limit the country homestead to the ■ single tract on which the dwelling house stands, and to deny its existence in separate tracts, although used in connection with the home farm for supplying it .with timber, or for tillage, although some courts have held opposing views, says: “We shall also trace a growing disposition on the part, of the courts, in determining what is to he included in the homestead, to take into consideration the legal subdivisions of land, such as public surveys and recorf^»^y«yqi^*g)lats; and a person in laying off his hoayegtoaf| wlll permitted to gerrymander th/uo,llLC different publi&tourveys, making a tract irregular and unusual in shape in order to bring within it, land of a peculiar value when to do so will work a fraud upon those who have innocently purchased from him.” Thompson on Homesteads and Exemptions, § 120. This court has approved this principle as stated by Mr. Thompson, saying that “A homestead, if we were to suppose such a case, fenced in the shape of an animal, a bird, a flower garden, or other fantastic shape, would not cease to be exempt from execution on this account, provided it be of lawful area and value, and the entire tract owned was in this particular form. Although it is manifest that a selection in these quaint forms, made from a large tract of land, would be unreasonable and capricious, and not allowable.” — Jaffrey v. McGough, 88 Ala. 649; Alford v. Alford, 88 Ala. 656. In the case of Jaffrey v. McGough, will be found an extended discussion of this subject, not necessary here to repeat, in which the doctrine is held, that a claim of exemption, the selection having been arbitrarily and capriciously made, to meet the purposes of the claimant, will not be upheld.

In the case before us, the selection seems to have been made in violation of this wholesome rule, as much so, possibly, as in the cases cited. The 30 acres selected is a narrow strip running clear across • the section, nearly to the center of the 40 acres lying on the extreme southeast of the half section, and there, 15 acres are carved out of the southeast quarter of this 40 acres, the narrow strip- representing in likeness a long -stem of a pipe, with the 15 acres as its bowl. The 114 acres, sued for lies on the west side of tfaé section, and consists of two forties in the south half of the section, and 34 acres in the southwest quarter of the north half of the; next abutting; 40 acres above these. Why the selection was thus made, is not shown, but it is on its own face palpably arbitrary and capricious, and cannot be approved as a lawful selection of homestead claimed under section 2041 of the Code. - The declaration of claim bv defendant filed undgj*<>"'fePaf"^tioca should have been excluded as ejh&mie. Without.'-?118 evidence the defendant had no case, and the plaintiff would have been entitled to the general charge as requested by him. It is unnecessary to note other assignments of errors.

Reversed and remanded.

The dotted lines include the lands selected as a homestead.