Scaife v. Argall

74 Ala. 473

• Court: Supreme Court of Alabama
• Decided: December 15, 1883
• Status: Published

Opinion

STONE, J.

— The general, statutory rule as to the right of homestead exemption in this State, is that it must have been “ owned and occupied ” by the claimant at the time it is sought to be subjected; or, correctly speaking, when a lien upon it would attach, in the absence of such occupancy. — Code of 1876, § 2820; Hudson v. Kelly, 70 Ala. 393. Seption 2843 of the Code makes an exception as to actual occupancy. Under its provisions, “ a temporai'y quitting, or leasing the [premises] for a period of not more than twelve months at any one time, shall not be deemed to be an abandonment of it [them] as his homestead.” Temporary quitting, must mean a temporary absence, with the intention of returning; such, for illustration, as visiting a watering-place. Some persons have a summer residence in the country, and close up the residence in town during such country sojourn. This is temporary absence, the animus revertencli existing all the while. Leasing the premises for a period of not more than twelve months at any one time. But for this clause, whenever the homestead is let to rent, and the owner removes from it, there would be a cessation of his occupancy.— Waugh v. Montgomery, 67 Ala. 573; Lehman, Durr & Co. v. Bryan, 67 Ala. 558; Stow v. Lillie, 63 Ala. 257; Boyle v. Shulman, 59 Ala. 566. We think the clause we are considering must be understood as meaning, that if the owner does not in fact return and occupy the premises, until after a lapse of ' more than twelve months of continuous time, they being all the while in the occupancy of a tenant, or succession of tenants, holding in rightful possession, then the right of exemption is lost; and that loss must date from the time the owner, by his contract of letting, puts it out of his power to return and re-occupy, within twelve months after quitting the possession. The right of homestead “ is conferred to protect the roof that shelters, and can not be converted into a shield of investments in lands, from which rents and profits are to be derived.”- — Boyle v. Shulman, supra.

And the homestead right, to be available, must exist at and before the date of the execution lien. Subsequent entry and occupation of the premises can not retroact, so as to give validity to the claim. — lb.

At the time of the levy in this case, the owner was out of possession — the premises having been let to a tenant, rendering rent, for a term of six months. The owner had also let them to like rent for another year, to commence at the expiration of the first lease. Tie had thus disabled himself to occupy for a continuous term of eighteen months. This was a' forfeiture of his homestead exemption.

•The judgment of the Circuit Court is affirmed.