Waugh v. Montgomery

STONE, J. — There are two conclusive reasons, not to no-_ tice any others, why Mr. Waugh’s claim of homestead exemption can not be allowed. First, it is neither averred nor proved that he occupied the premises, which he claims as exempt. On the contrary, it is shown that neither he nor his 575 family has occupied them since 1873. Second, the claim was not interposed, until after the sale by the sheriff, at which Mr. Montgomery became the purchaser. — Martin v. Lile, 63 Ala. 406; McConnaughy v. Baxter, 55 Ala. 379; Preiss v. Campbell, 60 Ala. 635. This disposes adversely of all claim asserted by Waugh. If Mr. Cocks has any claim under the mortgage transferred to him by Couch, he has been very remiss in asserting it. The mortgage secured only one thousand dollars. If the advances Coach made exceeded that sum, the mortgage did not secure the excess. Of- this one thousand dollars, Cooks paid six hundred, and had turned over to him six or eight mules and horses, covered by the mortgage, which was afterwards assigned to him. Prima facie he was liable for the value of this stock so turned over, or rather, it was a payment to him, pro tanto, of the claim he asserts under the mortgage. If this is susceptible of explanation, Cooks and Waugb could have explained it. Neither of them was examined as a witness, either in chief, or on the accounting before the register. The Chancellor did not err in decreeing that the value of the mules and horses should be a credit on the mortgage debt, because, first, Couch took possession of them under the mortgage ; and when Cocks paid the six hundred dollars, they were handed over on his order. In taking the account, neither-Waugh nor Cocks offered any proof; and there were no exceptions filed to the report of the register. In these conditions, we think the Chancellor was right in presuming that Cocks had no rightful or valid claim, to' be enforced against the land. Tne decree of the Chancellor is affirmed.