Franklin v. Comer , 170 Ala. 229 ( 1911 )

ANDERSON, J.

.To every resident of this state our statute (Code 1907, § 4160) exempts ..from liability to creditors tbe homestead, not-to exceed 160 acres or $2,000 in-value, .“to tbe extent of any interest be may have tbereib, whether'a fee or less estate.”' -It'is-the value of the debtor’s interest, whether qualified or- comprising the-whole estate, in the homestead land, 'that must be eliminated->in determining whht must be exempt; so that, if the land is worth more than $2,000, Avhile the debtor’s interest does not- exceed that sum, there is nothing subject to execution for debt. —Steiner Bros. v. Berney, 130 Ala. 289, 30 South. 570; Bailey v. Dunlap Co., 138 Ala. 415, 35 South. 451; Tyler v. Jewett, 82 Ala. 93, 2 South. 905.

There being a valid and subsisting incumbrance on the homestead, the defendant had only an interest therein subject to said incumbrance, the amount of which was properly deducted from the' value of said homestead; and if his interest, after deducting the amount of the mortgage, did not exceed $2,000 in value, it was exempt from the payment of his debt. This is not only the proper construction of our statute, as indicated by the tendency of our own decisions, but is the construction given similar ones in other jurisdictions.—Kilmer v. Garlick, 185 Ill. 406, 56 N. E. 1103; Houf v. Brown, 171 Mo. 207, 71 S. W. 125; Meyer v. Nickerson, 101 Mo. 184, 14 S. W. 188; Hoy v. Anderson, 39 Neb. 386, 58 N. W. 125, 42 Am. St. Rep. 591; 21 Cyc. 492. Of course, if the incumbrance is inferior to the homestead right, it should not be deducted; but, if it is a valid and subsisting claim or lien on the homestead, it should be deducted in ascertaining the interest of the debtor in the property.

It matters not whether the removal of the defendant, on October 1, 1910, to Birmingham, did or did not amount to an abandonment of the homestead, as this was long after the levy of appellant’s execution. “The right to a homestead or other exemption, which is conferred by the Constitution and the statute laws of this state, must be determined according to the state of facts existing at the time when the lien of the execution or .other process .against the claimant attaches.”—Murphy v. Hunt, 75 Ala. 438; McCrary v. Chase & Co., 71 Ala. 540.

The judgment of the city court is affirmed.

Affirmed.

D'owdell, C. J., and S'ayre and Somervllb, JJ., concur.