COLEMAN, J.
James W. Hodges, the appellee, instituted the statutory action of ejectment to recover certain lands, and upon the conclusion of the evidence, the court gave the general affirmative charge for the plaintiff. Prior to the bringing of the present action the appellant, John G. Winston, Jr., in a similar proceeding, had recovered the lands now sued for from the plaintiff in this suit, and on appeal the judgment was affirmed.— Hodges v. Winston, 95 Ala. 514.
At common law a judgment in' ejectment was never final; either party failing could bring a new action.— Camp v. Forrest, 13 Ala. 114; Boyle v. Wallace, 81 Ala. 352; Jones v. DeGraffenreid, 60 Ala. 145. The only change in the common law made by statute of this State is, that two judgments in favor of the defendant, between the same parties, in which the same title is put in issue, is a bar to any action for the recovery of the same land or any part thereof, between the same parties or their privies, founded on the same title. — Code, 1886, § 2714. Both parties claim title from a common source; the appellant, Winston, as a purchaser at execution sale, as the property of James G. Coleman, and the sheriff’s deed, and the appellee, Hodges, by deed of conveyance from James G. Coleman and wife. The deed of conveyance to Hodges was dated February 20th, 1885, filed for record and recorded September 1st, 1885, in Book 0., pp. 322-3. This deed was again filed for record on the 13th day of February, 1886, and recorded on the 15th day of February, 1886, in Book O., pp. 453-4. The cause which led to the second registration will be referred to hereafter. The vendor, James G. Coleman, remained in possession under a rental contract from Hodges until the fall of the year 1885, when he removed to the State of Texas. The judgment against James G. Coleman, under which the land was sold by the sheriff, was rendered on the 23d day of February, 1885, in favor of Jno. G. Winston & Co., three days subsequent to the date of the deed to Hodges, but several months prior to the date of registration. The first execution issued and was received by the sheriff on the 22d of March, 1885, and executions were regularly kept up until the levy and [309] sale by tbe sheriff; the levy on the land being made on the 16th of September, 1885, and the sale on the 5th of November, 1885. The purchaser, John G. Winston, Jr., the party to this suit, was not a member of the firm of John G. Winston & Go., the plaintiff in execution, but he had notice on the day of sale of the claim of Hodges. This notice, however, would not affect his rights as a purchaser if the judgment creditor was not affected with notice. — DeVendell v. Hamilton, 27 Ala. 156. The evidence on the question of notice is by the plaintiff, Hodges, who testified that he gave the plaintiff in execution personal notice of his purchase from James G. Coleman, “a week after, but inside of two weeks,” from the date of his deed from Coleman. The judgment was rendered three days subsequent to the execution of the deed ; and “inside of two weeks” is less than thirty days. Section 1810 of the Code declares that “conveyances of unconditional estates * * * are void as to purchasers for a valuable consideration, mortgagees and judgment creditors, having no notice thereof, unless recorded within thirty days from their date.” The judgment was rendered before notice, but within less time than thirty days. It is argued that the purpose of registration is to give notice, and. actual notice is always at least the equivalent of constructive notice by registration. The conclusion deduced therefrom is, that as ■ registration of the conveyance within thirty days from its date under the statute would render it superior to any rights of purchasers, mortgagees and judgment creditors, acquired at any time during the thirty days before registration, so personal notice given at any time during the thirty days allowed for registration would relate back and have the same effect as registration. We do riot think the statute, in terms or in spirit, admits of this construction. If John G. Winston & Co., on the 23d day of February, instead of obtaining a judgment had purchased the land from James G. Coleman and paid him the purchase money and received a deed to the land, personal notice by Hodges óf his prior purchase subsequently given to John G. Winston & Co., although within the thirty days, would not invalidate their purchase. The statute expressly provides that conveyances not recorded are void as to purchasers for . a valuable consideration, unless recorded within thirty days. Judgment creditors [310] with or without a lien by the terras of the statute stand on the same footing as purchasers for a valuable consideration. This construction better accords with justice, is in harmony with the spirit of our previous decisions, and we believe to be the expressed purpose of the legislature. — DeVendell v. Hamilton, 27 Ala. supra; Tutwiler v. Montgomery, 73 Ala. 263; Wood v. Lake, 62 Ala. 489; Watt v. Parsons, 73 Ala. 202; Chadwick v. Carson, 78 Ala. 116. The trial court held differently, and in this respect erred. This conclusion upon the facts in the present record would dispose of the case, if the lands were subject to execution at the time of the levy and sale.
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COLEMAN, J.
James W. Hodges, the appellee, instituted the statutory action of ejectment to recover certain lands, and upon the conclusion of the evidence, the court gave the general affirmative charge for the plaintiff. Prior to the bringing of the present action the appellant, John G. Winston, Jr., in a similar proceeding, had recovered the lands now sued for from the plaintiff in this suit, and on appeal the judgment was affirmed.— Hodges v. Winston, 95 Ala. 514.
At common law a judgment in' ejectment was never final; either party failing could bring a new action.— Camp v. Forrest, 13 Ala. 114; Boyle v. Wallace, 81 Ala. 352; Jones v. DeGraffenreid, 60 Ala. 145. The only change in the common law made by statute of this State is, that two judgments in favor of the defendant, between the same parties, in which the same title is put in issue, is a bar to any action for the recovery of the same land or any part thereof, between the same parties or their privies, founded on the same title. — Code, 1886, § 2714. Both parties claim title from a common source; the appellant, Winston, as a purchaser at execution sale, as the property of James G. Coleman, and the sheriff’s deed, and the appellee, Hodges, by deed of conveyance from James G. Coleman and wife. The deed of conveyance to Hodges was dated February 20th, 1885, filed for record and recorded September 1st, 1885, in Book 0., pp. 322-3. This deed was again filed for record on the 13th day of February, 1886, and recorded on the 15th day of February, 1886, in Book O., pp. 453-4. The cause which led to the second registration will be referred to hereafter. The vendor, James G. Coleman, remained in possession under a rental contract from Hodges until the fall of the year 1885, when he removed to the State of Texas. The judgment against James G. Coleman, under which the land was sold by the sheriff, was rendered on the 23d day of February, 1885, in favor of Jno. G. Winston & Co., three days subsequent to the date of the deed to Hodges, but several months prior to the date of registration. The first execution issued and was received by the sheriff on the 22d of March, 1885, and executions were regularly kept up until the levy and [309] sale by tbe sheriff; the levy on the land being made on the 16th of September, 1885, and the sale on the 5th of November, 1885. The purchaser, John G. Winston, Jr., the party to this suit, was not a member of the firm of John G. Winston & Go., the plaintiff in execution, but he had notice on the day of sale of the claim of Hodges. This notice, however, would not affect his rights as a purchaser if the judgment creditor was not affected with notice. — DeVendell v. Hamilton, 27 Ala. 156. The evidence on the question of notice is by the plaintiff, Hodges, who testified that he gave the plaintiff in execution personal notice of his purchase from James G. Coleman, “a week after, but inside of two weeks,” from the date of his deed from Coleman. The judgment was rendered three days subsequent to the execution of the deed ; and “inside of two weeks” is less than thirty days. Section 1810 of the Code declares that “conveyances of unconditional estates * * * are void as to purchasers for a valuable consideration, mortgagees and judgment creditors, having no notice thereof, unless recorded within thirty days from their date.” The judgment was rendered before notice, but within less time than thirty days. It is argued that the purpose of registration is to give notice, and. actual notice is always at least the equivalent of constructive notice by registration. The conclusion deduced therefrom is, that as ■ registration of the conveyance within thirty days from its date under the statute would render it superior to any rights of purchasers, mortgagees and judgment creditors, acquired at any time during the thirty days before registration, so personal notice given at any time during the thirty days allowed for registration would relate back and have the same effect as registration. We do riot think the statute, in terms or in spirit, admits of this construction. If John G. Winston & Co., on the 23d day of February, instead of obtaining a judgment had purchased the land from James G. Coleman and paid him the purchase money and received a deed to the land, personal notice by Hodges óf his prior purchase subsequently given to John G. Winston & Co., although within the thirty days, would not invalidate their purchase. The statute expressly provides that conveyances not recorded are void as to purchasers for . a valuable consideration, unless recorded within thirty days. Judgment creditors [310] with or without a lien by the terras of the statute stand on the same footing as purchasers for a valuable consideration. This construction better accords with justice, is in harmony with the spirit of our previous decisions, and we believe to be the expressed purpose of the legislature. — DeVendell v. Hamilton, 27 Ala. supra; Tutwiler v. Montgomery, 73 Ala. 263; Wood v. Lake, 62 Ala. 489; Watt v. Parsons, 73 Ala. 202; Chadwick v. Carson, 78 Ala. 116. The trial court held differently, and in this respect erred. This conclusion upon the facts in the present record would dispose of the case, if the lands were subject to execution at the time of the levy and sale.
The next question is whether the lands constituted a part of the homestead of James G. Coleman, and, if so, did they pass by the deed to Hodges. The evidence shows that the dwelling house of James G. Coleman was situated on forty acres of land which belonged to him, and this forty acres was separated from the land in controversy about three-quarters of a mile, by lands belonging to other parties. The evidence further shows that James G. Coleman had used and cultivated about twenty acres of cleared land of the land in suit, in connection with the forty acres upon which he resided for a great many years, the produce of which, equally with that raised on his own land, was consumed by him in the support of his family. The evidence shows however that at no time prior to the 7th day of February, 1885, did he own or claim as his own the land in controversy, but it belonged to his father, and by his license merely, without any contract of lease or other right than the mere verbal permission of his father, was the land used and cultivated by James G. Coleman. By the will of his father, who died on the 7th of February, 1885, James G. Coleman became the owner of the land in controversy. On the 20th of February, 1885, some thirteen days after he 1became the owner, the sale and deed to Hodges were executed. It is not necessary that a homestead should consist of one entire tract or parcel, all lying contiguous. It is sufficient if the separate tracts are near together and are used in common as one tract for the support and comfort of the family, and not in a city, town or village, which do not exceed in area one hundred and sixty acres, nor $2,000 in value. — Dicus v. Hall, 83 [311] Ala. 159; Hodges v. Winston, 95 Ala. 514. Atone time it was held that a leasehold could not be the subject of a homestead. — Pizzala v. Campbell, 46 Ala. 35. But under the law as it now exists, a homestead right may attach to land, whether held in fee, or for life, or a term of years. In fact one wrongfully in possession, but claiming a right to hold, may impress upon the premises occupied the character of a homestead, not so as to affect the rights of the true owner, but against creditors and all other persons except the owner of a superior title. — Watts v. Gordon, 65 Ala. 546; Weber v. Short, 55 Ala. 311; McGuire v. Van Pelt, Ib. 344; Ib. 379; Ib. 367.
We have found no case, however, which has gone to the extent of holding, that a homestead right, even inchoately, could attach to premises in which the occupant neither owned nor claimed to own any right or interest. The purpose of the homestead law was to protect the right and interest from levy and sale, and where there was no interest subject to process of law, the homestead law can have no operation. Such seems to have been the only interest or right of James G. Coleman in the 'land in controversy during his father’s life time. There was no act on the part of James G. Coleman from the time he became the owner of the land, 7th of February, 1885, and the date of his sale, if there was a valid conveyance on the 20th of February, 1885, which in any manner indicated that he claimed or intended to use the land derived from his father as his homstead. See Watts v. Gordon, supra. It may not be necessary to decide this question.
Treating the land as a part of the homestead, which of the parties litigant has the superior right? When the deed was first delivered to Hodges and filed by him for record and recorded, the acknowledgment was wholly insufficient as a conveyance of the homestead. The acknowledgment failed to show a separate examination of the wife, and as a deed of conveyance was null and void. When it was filed the second time for record, in February, 1886, it was properly acknowledged and on its face was effectual to pass the homestead. • This second acknowledgment bears the same date, to-wit, February 20th, 1885, as the first, and both were taken lay the same justice of the peace. The testimony of the justice is very [312] unsatisfactory. It is not characterized with that clearness and candor which should be evinced in the testimony of an officer testifying as to his official acts. There is evidence strongly persuasive to show, — we will not say conclusive, — that the date of the second acknowledgment is not correct. There is no such acknowledgment recorded with the first registration of the deed in September, 1885. The probate judge was not examined. Hodges, the plaintiff, himself' testifies that the second acknowledgment was placed upon the instrument at some subsequent time, the date of which he did not remember. It would seem from his testimony, that when he carried the deed to the justice of the peace the second time, neither the grantor nor his wife was px*esent, and a jury might infer, we do not say should infer, that he immediately refiled it for registration, when the second acknowledgment was placed upoxx the deed. The evidence shows that Jaxnes G. Coleman removed to Texas in the fall of the year 1885, but at what time is ixot shown. The sheriff’s sale was the 5th of November, 1885, It is very clear under our decisions that if the wife of James G. Coleman did not appear before the magistrate, and xnake the proper acknowledgment before the justice of the peace duxing the time the premises were occupied as a homestead, and before they were abandoned as such, axid in the meantime after the premises were abandoned as a homestead and before the second acknowledgment, if such second acknowledgment was ixx fact made, the plaintiff in execution, John G. Winston & Co., acquired a lien upon the premises by virtue of the execution in the hands of the sheriff, then no subsequent acknowledgment could relate back and defeat the right of the judgment creditor thus acquired. This is the rule as declared in Griffith v. Ventress, 91 Ala. 366; Hodges v. Winston, 95 Ala. 514.
As the case must be reversed and remanded, we will not express any opinion upon the effect of the evidence so far as it relates to these questions. The fact that James G. Coleman made a verbal contract to rent the land from Hodges for the year 1885 would not invalidate his title to the homestead, or prevent him from asserting his homestead right, if the deed to Hodges was void, for want of a proper acknowledgxnent by his wife. — Smith v. Pearce, 85 Ala. 264. Exceptions based upon the rulings [313] of the court as to testimony of witnesses are immaterial. None of them,whether admitted, or excluded, affect the-merits of the case.
There was no error in admitting the deed from Coleman to Hodges in evidence. It might have been more formally and regularly signed ; but looking at the instrument as a whole, it is sufficient.
Reversed and remanded.