Mullins v. Baker

SAYRE, J. At the May term, 1914, appellant moved in the circuit court for an order for the sale of defend [595] ant’s 40-acre tract of land to satisfy a judgment lie bad recovered before a justice of tbe peace. Code, § 4683. To tbe motion appellee opposed a claim of homestead exemption. On tbe evidence the court instructed tbe jury to find the contested claim of exemption in favor of appellee. Unquestionably, appellee bad occupied tbe land in controversy as bis homestead prior to 1912. But early in that year be purchased a 20-acre tract one mile away and established bis home there. It does not appear that be filed in tbe office of tbe judge of probate a declaration of bis claim of homestead exemption in' tbe property from which he removed, or any other, for that matter. Every indication of tbe evidence excludes tbe idea that be intended to return to tbe dwelling on tbe 40-acre tract in question. For the remainder of tbe year 1912 appellee let tbe entire 40-acre tract to one Easterling, a tenant, for a rental payable in money. To tbe same tenant be let tbe place for a like money rental for tbe year 1913, reserving, however, 3 or 4 acres which be cultivated. In tbe fall of 1913, this tenant moved out, leaving tbe place and tbe dwelling upon it in possession of bis subtenant, Mrs. Mims. Execution was issued by tbe justice of tbe peace and levied upon tbe 40-acre tract on February 12, 1914. For tbe year current at that time, and at tbe time of tbe trial, appellee bad “rented” tbe entire place to tbe former subtenant, who bad remained in possession; appellee furnishing tbe stock, farming implements, and fertilizer, tbe “tenant” doing tbe work, tbe crop to be equally divided between them. Both places together are worth not more than $2,000. (1, 2) If tbe 40-acre tract in question was not occupied as a homestead at tbe time of the levy or at tbe [596] time of the trial, appellant was, of cource, entitled to his order of sale. Appellee could not have two homestead exemptions at the same time, and on the facts stated above it appears plainly enough that he had abandoned his homestead in the 40-acre tract during the years 1912 and 1913. — Porter v. Harrison, 124 Ala. 296, 27 South. 302. To be exempt, the premises must be occupied in good faith as a home, rather than as a. source of income. The right of homestead is conferred to protect the roof that shelters and the land actually used in connection therewith for the comfort and sustenance of the family, and cannot be converted into a shield of investments in lands from which rents and profits are to be derived. — Fuller v. American Supply Co., 185 Ala. 512, 64 South. 551. But in Dicus v. Hall, 83 Ala. 159, 3 South. 239, it was held that two separate and distinct tracts may be embraced within the same claim of homestead exemption when used in connection with each other for the support and sustenance of the family; the owner living upon one, but cultivating or otherwise using both in common as a homestaead. The exemption, however, in such cases, does not extend to tenements, lots, or farms, actually, detached from the home place proper, unless they be appropriated to the personal use of the owner as an appurtenance to the home place — to such uses, for example, as cultivation by the owner, obtaining timber and firewood, and the pasturage of domestic animals. —Jaffrey v. McGough, 88 Ala. 648, 7 South. 333. (3) So, then, the question is whether by his contract with Mrs. Mims for the year 1914 appellee re-established his homestead interest in the 40-acre tract which previously he had abandoned. This contract was not affected by sections 4742 or 4743 of the Code. — Hendricks [597] v. Clemmons, 147 Ala. 590, 41 South. 306. Its meaning and effect are to- he determined according to the principles of the common law. The ownership of crops after they are produced does not necessarily determine the relation as to the land between the landowner and the person whose labor produces the crop. The laborer may be an employee without interest, or he may be a tenant holding the land by definite tenure. To let one have the use of the land to make a single crop on shares, without more, is no lease of the land, and the parties thereby assume the relation of employer and employee, though they become tenants in common of the crops produced. — Thompson v. Mawhinney, 17 Ala. 362, 52 Am. Dec. 176. “The relation of landlord and tenant may exist, notwithstanding the former is, by the terms of the contract, to receive a portion of the crop in payment. If the tenant take an interest in the soil, it is a lease, by whatever words made, and the payment of a specific portion of the crop is then simply a payment of the rent in kind.” — Smyth v. Tankersley, 20 Ala. 212, 56 Am. Dec. 193. The facts as to the nature of the con-, tract between appellee and Mrs. Mims were not very fully or clearly developed. Appellee’s testimony was not consistent throughout. We do not think it established as matter of law the fact that Mrs. Mims was an employee having no estate in the land. If the contract was one of hire, in which the laborer was to receive a part of the crop as compensation for her services, then the jury might have found that the remote tract was used as an appurtenant to the home place proper, and so was a part of the homestead; but if Mrs. Mims was let into occupancy, and had an exclusive right to' the premises for the year, and was bound to the cultivation of the crops, one-half of which she was to pay as rent, then the [598] property was hers for the time, was not used as an appurtenance for the appellee’s homestead, and was not exempt. This issue was for the jury. Reversed and remanded. Anderson, C. J., and Mayfield and Somerville, JJ., concur.