Goodloe v. Dean

SOMERVILLE, J. — Under the 77th Buie of Chancery Practice (Code, 1876, p. 172), each party, on the hearing of a cause in equity, is required to name the particular witnesses whose depositions are proposed to be offered in evidence, and to designate any other testimony upon which he relies, of which the register must take a note. “Any testimony not offered in this way, and noted by the register on the minutes, must not be considered as any part of the record, nor be considered by the chancellor.” Under this rule not even the answer of a defendant can be regarded as legal testimony, or considered unless it was offered in evidence before the court and noted by the register. — Mahone v. Williams, 39 Ala. 202. The answer of the defendant, Goodloe, to the complainant’s bill was not noted by' the register, and is, therefore, no part of the record. It was not, presumptively, regarded as evidence for any purpose by the chancellor, and we decline to give it any weight as such. Especially must this be so in view of the fact that the answer of the defendant on oath ivas waived in the bill, and it was, therefore, enti [481] tied to no more weight as evidence than the bill itself. Code, 1876, §§ 3762,-3786; 1 Brick. Dig. § 1466, et seq. The claim of homestead exemption, moreover, is a matter not responsive to the bill, but is a matter introduced in avoidance of the case made by the bill, and for this additional reason can not be proved by the answer alone, unsupported by proper testimony. — Barton v. Barton, 75 Ala. 400; 1 Brick. Dig. § 1483. Dejecting the averments of Goodloe’s answer, there is neither any evidence of a claim of homestead exemption, nor of the existence of the right. The answer of his co-defendants touching this subject-matter was no evidence in his favor. Nor is there any testimony taken in support of the claim. It is true that the complainant’s bill makes the mortgage executed to him by Goodloe on January 4, 1883, an exhibit, and in this paper certain improvements are designated as being on the mortgaged premises, including “the residence” and other buildings. But it is shown that the entire tract of land owned by Goodloe consisted of 240 acres, a part of which was mortgaged to complainant and a part to his co-defendants, Gilbert & Haley, to whom a priority is conceded without contest. The area of the alleged homestead tract thus exceeding the statutory limit of 160 acres, the mortgage of Goodloe was valid for the excess over and above, this quantity without the voluntary signature and assent of his wife, even if it had been shown that the premises were in actual occupancy of the mortgagor at the time of his making the conveyance.- — DeGraffenreid v. Clark, 75 Ala. 425 ; Butts v. Broughton, 72 Ala! 294. But no proof of actual occupancy is made, nor of the value of the alleged homestead which is not permitted to exceed two thousand dollars in value. — Code, § 2820. Nor is there any thing in the record from which we can decide that a selection has been made of any particular part of the entire tract, a duty which can be discharged only by the owner himself. — Code, § 2820 ; De Graffenreid v. Clark, supra. It may be that the premises had been leased to another, and being no longer in the owner’s actual occupancy, they may have been abandoned as a homestead in the eye of the law. — Murphy v. Hurst, Miller & Co., 75 Ala. 438, and cases cited. This we must assume in order to support the decree, if necessary. We certainly can not presume the contrary in order to reverse it. We hold, therefore, that the mortgage was valid without the signature and acknowledgment of the wife required by the statute, in order to alienate a right of homestead, the [482] evidence failing to establish the existence of any such right. Affirmed. •