CLOPTON, J.
— Each party takes an appeal from a decree rendered in a suit instituted in the Chancery Court by Thornton Tyler, against John F. Jewett. The purposes of the bill are, to have declared void and cancelled a mortgage, executed by complainant and his wife to defendant, on a lot in Mobile, and, incidentally, to annul a lease of the lot, and to divest defendant of the legal title. The right to relief is based on the ground, that the lot mortgaged was the homestead of complainant, and the insufficiency of the certificate of acknowledgment of the wife’s signature and assent to constitute a valid alienation. The main contention between the parties may be resolved into the inquiry, whether the complainant had, at the time of its execution, a claim of homestead which he is entitled to assert against the mortgage.
It is insisted, that, conceding the mortgage to be invalid, the bill can not be maintained, to remove a cloud from complainant’s title, for the reason, that after foreclosure by sale the defendant brought ejectment, and recovered possession of the lot before the bill was filed; and Jones v. DeGraffenreid, 60 Ala. 145, is cited as authority in support of this proposition. In that ease, it was held, that when a purchaser of the homestead at execution sale brought an action at law, and recovered possession of the premises, the principles on which equity intervenes to remove a cloud from the title do not apply, because the homestead, the claimant having the legal title, is a legal seizin, and will defeat ejectment — the remedy at law is complete and adequate. In the present case, the complainant had only an equitable title when he gave the mortgage. The defendant afterwards acquired the legal title from a third person, in whom it was vested, against which a homestead, resting on an equitable title, will not avail in an action at law. In such case, there is a special, equitable reason, why the powers of a court of equity should be invoked.
[98]*98Complainant contracted to purchase the lot in controversy in 1867, paying a part of the purchase-money, and receiving from his vendor a bond for'title. Under the contract .of purchase, he entered into possession of the land, and thereafter erected thereon some out-buildings, such as a store-house, bath-house, and stable. At the time of the purchase, he was occupying and residing on an adjoining lot, which he previously leased, in connection with which he used the lot in question for domestic and family purposes ; and continued to rent from time to time, and thus occupy and use both lots, until about 1882, when he moved into a building then recently erected on the lot purchased. The mortgage was executed July 29, 1880. The right of exemption, arising on these facts, does not involve the ascertainment of a clearly defined intention of present residence, manifested by acts of preparation without unnecessary delay, the equivalent of actual occupancy. The direct question is, whether, under the exemption laws, a homestead can include two or more parcels of land, the estate or interest in which is of different degree and quality, and held by titles of different kind and dignity.
It was not contemplated, nor intended, by the term “ owned,” as employed in the constitution, that absolute ownership, or an estate in fee, should be essential to a valid exemption of real property from the payment of debts. There is no limitation to any particular estate, either as to duration, quantity, or extent. It is the land on which the dwelling-place of the family is located', used, and occupied as a home, which the constitution and statutes protect, however inferior may be the title, or limited the estate or interest; not because there is an estate or interest in the land, but because it is the homestead, the dwelling-place, and its appurtenances. Protection of the estate or interest, of whatever dignity or inferiority, is incidental to the preservation of the homestead. The statute, adopting this construction of the constitution, expressly declares : “Such homestead exemption shall be operative to the extent of the owner’s interest therein, whether it be a fee or less estate.” An absolute or qualified ownership — a fee simple, or equitable estate, or for life, or for years — meets the requirements of the constitution and statutes, and effectuates their policy and purposes. Whatever right or claim the debtor may have, which may be subjected to the payment of debts, or is capable of alienation, falls within their operation, and the homestead exemption may be successfully claimed, except as against the true owner, or a superior title. The uses to which the land is devoted, and not the quality and quantity [99]*99of the estate, impress the characteristics of a homestead. The lot leased by complainant was his homestead at the time he contracted to purchase the lot in controversy, and continued such so long as he continued to lease, use, and occupy it as the dwelling-place of himself and family. Watts v. Gordon, 65 Ala. 546; Thomp. on Homestead Exemptions, § 176.
It is insisted, however, that complainant could not impress the character of a homestead upon the lot in question, until he abandoned the leased house and lot. It does not necessarily follow that complainant should actually have a dwelling on the lot purchased, in which his family resided, in order to include it in his homestead, and as part thereof. The language of the constitution and statutes — “ any lot in a city, town, or village” — does not restrict the homestead to one lot or piece of land. Such would be a narrow and strict interpretation, not in harmony with the spirit or policy of the exemption laws, nor with the settled rule, that they shall be liberally construed to .accomplish their benevolent objects. A lot, as lots may be surveyed and numbered, or otherwise designated, in the plan or map of the city, town or village, was not contemplated. When the homestead is urban, the limitation relates to the value, and not to the number or extent of the lots. Two or more adjoining lots may be occupied and used as a homestead, and for this purpose constitute one lot or tract. Where a person owns a lot, on which is the dwelling-place of himself and family, he may acquire an abutting lot, and impress the character of the homestead, by devoting it, in connection with his dwelling, and as appurtenant thereto, to the appropriate and requisite occupancy and uses, if the limitation as to value is not exceeded. — Englehardt v. Shade, 47 Cal. 627; Walters v. People, 65 Amer. Dec. 730; Wassel v. Tunnah, 25 Ark. 101.
We have, therefore, as postulates, that the right to homestead exemption does not depend on the nature of the title, or the degree or character of the estate, but will be determined by occupancy and uses ; and that a homestead may consist of two or more adjoining pieces of lands, so connected, occupied and used, as to constitute, in contemplation of law, one tract. The logical and obvious consequence is, that it is not essential that the several lots or pieces shall be held by the same title, or the same kind of title. The policy of the constitution and statutes is not restricted to the mere preservation of homesteads already acquired, but extends to encouraging their acquisition, in order to prevent and avoid the unmixed evil and misfortune of a home[100]*100less population; “and if we look beyond tbe essential characteristics of a homestead —actual occupancy as a home, a dwelling-place — and enter upon an inquiry as to the tenure upon which the right of occupancy depends, we are sure to contravene this policy.” — Watts v. Gordon, supra.
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CLOPTON, J.
— Each party takes an appeal from a decree rendered in a suit instituted in the Chancery Court by Thornton Tyler, against John F. Jewett. The purposes of the bill are, to have declared void and cancelled a mortgage, executed by complainant and his wife to defendant, on a lot in Mobile, and, incidentally, to annul a lease of the lot, and to divest defendant of the legal title. The right to relief is based on the ground, that the lot mortgaged was the homestead of complainant, and the insufficiency of the certificate of acknowledgment of the wife’s signature and assent to constitute a valid alienation. The main contention between the parties may be resolved into the inquiry, whether the complainant had, at the time of its execution, a claim of homestead which he is entitled to assert against the mortgage.
It is insisted, that, conceding the mortgage to be invalid, the bill can not be maintained, to remove a cloud from complainant’s title, for the reason, that after foreclosure by sale the defendant brought ejectment, and recovered possession of the lot before the bill was filed; and Jones v. DeGraffenreid, 60 Ala. 145, is cited as authority in support of this proposition. In that ease, it was held, that when a purchaser of the homestead at execution sale brought an action at law, and recovered possession of the premises, the principles on which equity intervenes to remove a cloud from the title do not apply, because the homestead, the claimant having the legal title, is a legal seizin, and will defeat ejectment — the remedy at law is complete and adequate. In the present case, the complainant had only an equitable title when he gave the mortgage. The defendant afterwards acquired the legal title from a third person, in whom it was vested, against which a homestead, resting on an equitable title, will not avail in an action at law. In such case, there is a special, equitable reason, why the powers of a court of equity should be invoked.
[98]*98Complainant contracted to purchase the lot in controversy in 1867, paying a part of the purchase-money, and receiving from his vendor a bond for'title. Under the contract .of purchase, he entered into possession of the land, and thereafter erected thereon some out-buildings, such as a store-house, bath-house, and stable. At the time of the purchase, he was occupying and residing on an adjoining lot, which he previously leased, in connection with which he used the lot in question for domestic and family purposes ; and continued to rent from time to time, and thus occupy and use both lots, until about 1882, when he moved into a building then recently erected on the lot purchased. The mortgage was executed July 29, 1880. The right of exemption, arising on these facts, does not involve the ascertainment of a clearly defined intention of present residence, manifested by acts of preparation without unnecessary delay, the equivalent of actual occupancy. The direct question is, whether, under the exemption laws, a homestead can include two or more parcels of land, the estate or interest in which is of different degree and quality, and held by titles of different kind and dignity.
It was not contemplated, nor intended, by the term “ owned,” as employed in the constitution, that absolute ownership, or an estate in fee, should be essential to a valid exemption of real property from the payment of debts. There is no limitation to any particular estate, either as to duration, quantity, or extent. It is the land on which the dwelling-place of the family is located', used, and occupied as a home, which the constitution and statutes protect, however inferior may be the title, or limited the estate or interest; not because there is an estate or interest in the land, but because it is the homestead, the dwelling-place, and its appurtenances. Protection of the estate or interest, of whatever dignity or inferiority, is incidental to the preservation of the homestead. The statute, adopting this construction of the constitution, expressly declares : “Such homestead exemption shall be operative to the extent of the owner’s interest therein, whether it be a fee or less estate.” An absolute or qualified ownership — a fee simple, or equitable estate, or for life, or for years — meets the requirements of the constitution and statutes, and effectuates their policy and purposes. Whatever right or claim the debtor may have, which may be subjected to the payment of debts, or is capable of alienation, falls within their operation, and the homestead exemption may be successfully claimed, except as against the true owner, or a superior title. The uses to which the land is devoted, and not the quality and quantity [99]*99of the estate, impress the characteristics of a homestead. The lot leased by complainant was his homestead at the time he contracted to purchase the lot in controversy, and continued such so long as he continued to lease, use, and occupy it as the dwelling-place of himself and family. Watts v. Gordon, 65 Ala. 546; Thomp. on Homestead Exemptions, § 176.
It is insisted, however, that complainant could not impress the character of a homestead upon the lot in question, until he abandoned the leased house and lot. It does not necessarily follow that complainant should actually have a dwelling on the lot purchased, in which his family resided, in order to include it in his homestead, and as part thereof. The language of the constitution and statutes — “ any lot in a city, town, or village” — does not restrict the homestead to one lot or piece of land. Such would be a narrow and strict interpretation, not in harmony with the spirit or policy of the exemption laws, nor with the settled rule, that they shall be liberally construed to .accomplish their benevolent objects. A lot, as lots may be surveyed and numbered, or otherwise designated, in the plan or map of the city, town or village, was not contemplated. When the homestead is urban, the limitation relates to the value, and not to the number or extent of the lots. Two or more adjoining lots may be occupied and used as a homestead, and for this purpose constitute one lot or tract. Where a person owns a lot, on which is the dwelling-place of himself and family, he may acquire an abutting lot, and impress the character of the homestead, by devoting it, in connection with his dwelling, and as appurtenant thereto, to the appropriate and requisite occupancy and uses, if the limitation as to value is not exceeded. — Englehardt v. Shade, 47 Cal. 627; Walters v. People, 65 Amer. Dec. 730; Wassel v. Tunnah, 25 Ark. 101.
We have, therefore, as postulates, that the right to homestead exemption does not depend on the nature of the title, or the degree or character of the estate, but will be determined by occupancy and uses ; and that a homestead may consist of two or more adjoining pieces of lands, so connected, occupied and used, as to constitute, in contemplation of law, one tract. The logical and obvious consequence is, that it is not essential that the several lots or pieces shall be held by the same title, or the same kind of title. The policy of the constitution and statutes is not restricted to the mere preservation of homesteads already acquired, but extends to encouraging their acquisition, in order to prevent and avoid the unmixed evil and misfortune of a home[100]*100less population; “and if we look beyond tbe essential characteristics of a homestead —actual occupancy as a home, a dwelling-place — and enter upon an inquiry as to the tenure upon which the right of occupancy depends, we are sure to contravene this policy.” — Watts v. Gordon, supra. There are cases, and the present case seems to be one, where the head of a family, for want of means, is unable to purchase a lot, and, at the same time, construct thereon necessary buildings, but who has means sufficient to procure the ground, and wait further preparation, until by energy, industry, and economy, he is able to erect a dwelling and other houses. In such case, we see no sufficient reason why in the meantime he may not lease adjoining premises having a .dwelling-place, where he may reside, and, by appropriate and requisite occupation and uses of tbe land purchased a3 appurtenant thereto, impress the essential characteristics, and constitute it a part of his homestead, in the same manner and to the same extent as if he had acquired both lots by purchase, so far as respects its alienation or subjection to the payment of debts. The preservation of such part of the homestead so created and constituted is within the purview of the constitution and statutes, and in furtherance of their purposes and policy. On the facts shown by the record, the lot in controversy was a part of the homestead of complainant when the mortgage was executed, which the constitution and the statutes protect.
But it appears from the evidence, and the recitals of the mortgage, that it was given as security, not only for a past indebtedness, but also for the work and materials to complete a dwelling on the lot partly constructed. The constitution expressly provides, that the provision exempting the homestead shall not be so construed as to prevent a mechanic’s lien for work done on the premises; and the statute adds, “materials furnished.” — Con. of Ala., Art. x, § 4; Code of 1876, § 2821. If the work is done, and the materials furnished, on the personal security of the debtor, the constitutional and statutory prohibition does not apply; but, if there be a lien, whether created by contract, or arising under the lien laws, such lien constitutes the claim a privileged debt, against which the right of exemption can not be asserted. The expression, “a mechanic’s lien for work done on the premises,” does not refer to ihe manner in which the lien may arise, but to the character of the debt, a lien for which will be superior to the right of homestead exemption. The object for which the debt is contracted is the controlling consideration, founded in natural justice, which denies the debtor the right and privilege to retain and enjoy the [101]*101benefits of labor and materials necessary to build for him and his family a dwelling-place, and hold it exempt from payment for such labor and materials — for its erection on the security of the lien. Equity will not permit complainant to have the mortgage cancelled, without paying for the work done and materials furnished, after its execution, in finishing the house.
It further appears that, by request of complainant, defendant paid his vendor one hundred dollars in discharge and satisfaction of the purchase-money of the lot. The generally accepted rule is, that the lien of a vendor for the purchase-money is an incumbrance upon the homestead, against which the exemption does not prevail. Under our decisions, however, the payment of the purchase-money by request of complainant did not operate to transfer the original demand to defendant, but extinguished it, and created a new liability, defendant becoming a new and original creditor. — Chapman v. Abraham, 61 Ala. 108. Whether or not, under the circumstances of this case, the complainant having only a bond for title, and the defendant having obtained the legal title, the amount should be regarded as purchase-money as against the claim of exemption, it is unnecessary to decide. One purpose of the bill is to divest the legal title, which defendant obtained from Hallett, to whom complainant’s vendor had conveyed it, and vest it in complainant. The mere cancellation of the mortgage will not produce this result. Possession of the legal title arms defendant with a legal advantage, which compels complainant to resort to a court of equity. An inflexible rule is, whoever seeks equity must do equity. — Smith v. Murphy, 58 Ala. 630. In this aspect of the case, the question of homestead as such is not involved. It would be inequitable to deprive defendant of the advantage of the legal title, without requiring repayment of the purchase-money paid by him, only by reason of which payment complainant would be entitled to demand it of his vendor. The rule is analogous which governs when a mortgagor seeks to redeem.
It may be said, that the bill contains no offer to do equity; but no objection having been made in the Chancery Court because of this defect, we shall not take notice of it on this appeal. A proper adjustment of the equities of the parties requires the ascertainment of the amount due and unpaid for work done and materials furnished after the execution of the mortgage, in finishing the dwelling, and for the amount of the purchase-money paid by defendant. As to all other indebtedness included, the mortgage is invalid. [102]*102In taking tbe account, prior payments should be applied to the antecedent indebtedness. Under the circumstances, the mortgage being void as to part of the debt, there is no error in setting aside the foreclosure sale; but the chancellor erred in decreeing that the mortgage is a valid security for the entire mortgage debt unpaid.
The decree is reversed on the appeal of complainant, and defendant takes nothing by his cross-appeal.