Home/Supreme Court of Alabama/Jaffrey & Co. v. McGough

Jaffrey & Co. v. McGough

88 Ala. 648
CourtSupreme Court of Alabama
DecidedNovember 15, 1889
StatusPublished
Cited by28 cases

This text of 88 Ala. 648 (Jaffrey & Co. v. McGough) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jaffrey & Co. v. McGough, 88 Ala. 648 (Ala. 1889).

Opinion

SOMERVILLE, J.

The only question raised for our consideration in this case, is the correctness of the chancellor’s decree in the allowance of the homestead, as selected by the appellees, in the arbitrary and irregular form in which the selection was made, as illustrated by the peculiar diagram accompanying the record. It is not denied that the appellee, as debtor, is entitled to a homestead of 160 acres, not to exceed a valuation of two thousand dollars. But it is contended that this selection can not be made on arbitrary principles, unrestrained by any limit of discretion except the mere-caprice of the debtor.

We are satisfied this contention is correct, and that the debtor’s power of selection must be confined within the bounds of reason and justice on the one hand, and can not be permitted to be entirely arbitrary and capricious, on the other.

Both the Constitution and the statutes of this State contemplate that the homestead, exempted from execution, or administration, in any allotment of its area that may be made, or any declaration of claim made and filed under the statute, shall be “selected,” as the case may be, by the debtor, widow, or other claimant. — Const. 1875, Art. X, §2; Code, §§ 2507, 2515, 2534, 2551. This power of selection necessarily involves some latitude of discretion, but it is also, ex vi termini, limited by the nature of the thing to be selected, and by those broad principles of justice and reason which must control and regulate the exercise of every legal right. The thing authorized to be selected is “the homestead” of the resident owner, “with the improvements and [650]*650appurtenances,” o£ the area and value designated. — Code, §§ 2507, 2543. Where the allotment is made by commissioners, after levy of execution, and under an order of court, while regard is had to the selection of the defendant, it is provided that the commissioners must take the “land most contiguous to the dwelling, and including such dwelling and appurtenances.” — Code, 1886, § 2534. Where the exemption is selected from administration by the widow, or guardian of minor children, it is regulated by section 2551 of the present Code. But the limitation contained in the latter section, restraining the selection to “land most contiguous to the dwelling,” it may be observed, has been stricken out by a recent legislative amendment, approved February 28th, 1889. — Acts 1888-89, pp. 86-97. The selection in this case, being made by the debtor, is governed by section 2534; so that we need not consider what effect, if any, was accomplished by the amendment in question.

■ The appellee, then, was authorized to select the homestead owned by him, “with the improvements and appurtenances,” embracing “the land most contiguous to the dwelling, and including such dwelling and appurtenances.” This is nothing more, perhaps, than would be imported by the term homestead itself, which is defined to mean “the place of the house; a mansion-house, with adjoining land.” — Worcester’s Diet. And again: “A mansion-house; a person’s dwelling; the place with the inclosure, or ground immediately contiguous; an abode; a home.” — Imperial Diet. As said in a well considered case: “ It is the home, and the adjoining land, where the head of the family dwells; the home farm. It does not extend to other tenements, lots and farms, that are not occupied personally by the owner and his family — houses in which they do not dwell, and farms on which they do not live.”—Hoitt v. Webb, 36 N. H. 158.

This exempted “homestead” was supposed by the framers of our constitution and laws to have some definite' dimensions, capable of reasonable identification, varying and shaded, .it may be, in its boundaries by the principle of selection. This is assumed in the . prohibition directed against its alienation by a married man, “without the voluntary signature and- assent of the wife,” duly acknowledged, and properly certified by the requisite officers. — Code, § 2508. As to what part of the occupied premises shall be deemed to fall within this area, all purchasers from the husband are required to take notice. The same is true of purchasers at [651]*651an execution sale, who buy a large tract including the homestead. They are put on notice as to what part of the land the debtor may choose to select. What shall be the limits on the discretion of the debtor’s power of selection?

We assert, first, that it must be reasonable, and not purely arbitrary and capricious, or fanciful. •

If the limits of the homestead are already fixed, whatever the shape or form of the tract, by actual occupancy and use, and the area is within the amount exempted — 160 acres— there is no room for any exercise of discretion, much less of caprice. A homestead, - if we could 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. If so, like the cloud described by Hamlet to Polonius, it might just as well be “in the shape of a camel,” a “weasel,” or a “whale,” as in any other that might be dictated by the fancy of the person making the selection. So, where a disconnected tract of land, not contiguous to the homestead, is tona fide and habitually used as a part of it, and the two tracts together do not exceed the area or value allowed, they may both be selected in the shape in which they already exist. This is on the principle, that “the use made of the land may determine its character as part of the homestead or not, as well as its proximity to, or remoteness from the residence, or mansion-house.”—H. & G. N. R. R. Co. v. Winter, 44 Tex. 597, 611; David v. David, 56 Ala. 49; Thompson on Homesteads, § 146. While the authorities are repugnant in the conclusions reached on this subject, some of them holding that the homestead tract must be in one solid compact body, and can . not consist of non-contiguous parcels, this court has adopted the rule, that two tracts or lots may be so connected, in their particular use and appropriation as to be exempted as one homestead, although they are not contiguous. This ruling, however, has not been extended further than to embrace two parcels, already used and appropriated to homestead purposes, where they together do not exceed the statutory area and valuation—Dicus v. Hall, 83 Ala. 159; Prior v. Stone, 19 Tex. 371; 70 Amer. Dec. note, pp. 350-353. In such cases, there is no latitude for [652]*652the unjust exercise of caprice, fancy, or arbitrary will-power in making the selection. The selection, in a certain sense, is already made.

It is a fact not to be ignored, that the quantity of land exempted for homestead purposes in this State, and not in a city, town or village, is, and has always been, a multiple of forty acres, which is an established legal subdivision of land according to the survey of the General Government. The present real estate exemption in Alabama is 160 acres; and it has been at different times 40, 80, 160, and 320 acres, — each equally divisible by forty. The same is generally true as to other States, whose statutes we have had occasion to examine.

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Bluebook (online)
88 Ala. 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jaffrey-co-v-mcgough-ala-1889.