Porter v. Harrison

124 Ala. 296

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

McCLELLAN, C. J.

— The evidence shows quite satisfactorily that J. T. Porter removed from his house in Hillsboro and took up his residence at least for the year 1892 elsewhere on January 28, 1892. Indeed it is free from conflict to that effect unless a contrary conclusion may be rested on the fact that ho left for a time thereafter a feAv articles of household furniture — a safe, some chairs and some fruit jars. It is not shown how long these articles remained there, except that they were there on February 8th following. They may have been allowed to remain there, so far as the evidence shows to the contrary, for months during which Porter had an established residence in a different precinct, and even beyond the time when he registered as a voter and voted therein. We do not think the fact of so leaving these articles there can justify the conclusion that his residence was constructively there after January 28th or that he had not changed his residence or abandoned that house as a residence on February 8th when he attempted to file a claim of homestead exemption in the office of the judge of probate of the county. The claim being thus filed' after the homestead had been abandoned as such, was abortive, and ineffectual to save his right thereto. Code, § 2065; and authorities on brief of appellee’s counsel.

This conclusion leaves in the case only questions of fact as to whether the debt which it is claimed Porter owed his brother-in-law, Emens, in alleged payment' of which Porter conveyed this house and lot to Emens, has been sufficiently proved,' and whether it has been with requisite (deafness shown that Mrs. Porter and not her husband, J. T. Porter made the payments which have been made to Mrs. Baker for the land purchased from her in the name of Mrs. Porter. Upon these inquiries of fact the evidence has been read and considered by the court en banc, and our conclusion,c contrary to that reached by the chancellor, is that both the debt of J. T. Porter to Emens and the purchase of the Baker lands by Mrs. Porter and payments out of her own funds of the purchase money which has been paid thereon have been shown with that degree of fullness and clearness required to support transactions of this sort between relatives against the attack of creditors of one of them. The decree below must therefore be reversed, and a decree will be here entered denying relief to complainant and dismissing the bill.