
    Garrett & Sons v. Jones.
    
      Contested Claim of Homestead Exemption.
    
    1. House and lot as homestead; how determined. — Whether or not a house and lot in an incorporated town can constitute an exempt homestead, is to be determined by the character oí the building, the uses to which it is adapted, and to which it has been devoted, and not by the intention or purpose oí the owner in building it; and where the house, as here, is a building 40 feet by 20, divided by partitions into two rooms, the larger one being fitted up with shelves and used as a bar-room, first by the owner and then by his lessee, it can not be claimed as a homestead because the smaller room, about 14 by 16 feet in size, was used by him as a bed-room, while taking his meals elsewhere in town, and was not leased with the residue of the premises, though the lessee was allowed to sleep in it.
    
      Appeal from tlie Circuit Court of Tallapoosa.
    Tried before tlie Hon. J. It. Dowdell.
    Tlie appellants in this case having obtained a judgment on the 17th September, 1890, against L. D. Jones, an execution thereon was levied by the sheriff, October 8th, 1890, as shown by his return, “on one business house and lot in the town of Camp Hill, known as the L. D. Jones Bar-room’, bounded as follows,” &c. The defendant interposed a claim of exemption to the house and lot as his homestead, describing it as “one storehouse and lot in the town of Camp Hill, known as the ‘L. D. Jones Bar-room,’ bounded as follows”; and his claim was contested by the plaintiff. On the trial of the issue joined between the parties, it was shown that the value of the property was less than $1,000; and the other evidence is thus stated in the bill of exceptions :
    “The defendant himself, and Gr. ~W. Dawson, B. B». Spinks and others, in his behalf, testified substantially, that said house and lot was situated in the town of Camp Hill, the house being about 40 feet from the track of the C. & W. Railway Company, and 25 or 30 yards from the depot, being-in the immediate locality of other business houses in said town, and without any inclosure around the building, or other obstructions to approach thereto; that said house is about forty feet in length, extending north and south parallel with the railroad track, and about twenty feet in width; that it was built by said Jones in 1887, to' be used as his home and residence, and for a business house, and was so used and occupied; that on the north and south ends, and also on the east side, on the outside of the building, were imprinted in large letters the words, ‘ L. D. Jones, dealer in liquors, fine wines, &c.,’ together with drawings representing a barrel, jug, decanter, &c.; that there is a door in the east side of said house, and another in the north end thereof; that said house is divided by partition Avails into tAvo rooms, one of Avhicli, as said Jones testified, is about fourteen feet Avide by sixteen feet long, in the south-west corner of the building, from which a door opens into the other room, and used as a common passway between the two rooms ; that in the year 1890, and at the time of said levy, as well as at the time of the trial, the front room of the house, in which were the bar-fixtures of said Jones, was rented and occupied by one Landrum as a liquor-saloon, the back room being reserved and occupied by said Jones as his home, but was also used by said Landrum as a bed-room in conjunction Avith said Jones, and by his permission, but not under the contract of rent; that said Jones, who is an unmarried man, kept his bed, his trunk, gun, wardrobe, and all his household goods in said room, and occupied the same as his place of residence, but ate his meals at the residence of the witness Dawson, who resided on a different lot in said town; and that said defendant had no other place of residence. It was shown, also, that each of said rooms was provided with a fire-place by means of a stack chimney between them; that the larger room was provided with a counter, screen, decanters, barrels &c., and otherwise appointed for saloon purposes; and that there was a door in the south end of the building, entering the room occupied by said Jones. This being all the evidence, the court charged the jury, on request, that they must find for the defendant, if they believed the evidence.” The plaintiffs excepted to this charge, and they here assign it as error.
    H. J. Gillah, for appellants,
    cited Blum v. Garter, 63 Ala. 235 ; Me Gonnaghy v. Baxter, 55 Ala. 381; 9 Amer.' & Eng. Encyc. Law, 428, note 9.
    W. D. Bulger, contra,
    
    cited Pryor v. Stone, 19 Texas, 371; Ocldey v. Chamberlain, 76 Amer. Dec. 516; 70 Amer. Dec. 341.
   McCLELLAN, J.

Whether the house and lot involved in this case constitutes the homestead of the defendant Jones, depends upon the character of the building, and the uses to which it is adapted and to which it was devoted. The purposes for which it was erected by Jones, the fact that it was built by him “to be used as his home and residence, and for a business house,” can exert no influence in determining whether it was “a home and residence” now that it has for long been a completed structure and subjected to whatever occupancy was originally contemplated by the claimant. Its Hiatus, as being a homestead or not, must be adjudged by what he did — by the character of house he built, and the uses to which he in fact devoted it — and not by what he intended to do. Moreover, the fact that he built it for a home and residence can not be proved by evidence of his mere purpose to subserve that end, but can only be found inferentially from his visible acts in the premises ; and his testimony that such was his purpose must be taken to mean only that he intended to build such a home and residence as he did in fact build. And however his mind may have been imbued with the idea that he was proposing a borne for bimself, it will not be belcl to be a homestead, unless, dissociated from bis own purposes, tbe bouse and lot in question fills tbe definition of a homestead under our laws. Tbe evidence of bis intentions found in this record must, therefore, be wholly disregarded; and tbe inquiry must proceed with reference solely to the kind of bouse which is on tbe lot and tbe nature of its occupation by Jones ; it being admitted that, as to location, area and value, tbe bouse and lot is within tbe exemption secured to Jones against tbe claim which tbe plaintiffs seek to enforce upon it.

Tbe bouse is in tbe business portion of tbe town of Camp Hill. It is not inclosed as residences in towns of this .class usually are. Its dimensions are about forty by twenty feet. It is divided by partition walls into two rooms, one of which is in a corner of tbe building and is about sixteen by fourteen feet. Tbe other and larger room covers tbe remainder of tbe building, and this is filled up with counters, <fec., as for a business bouse. Between these rooms there is a door leading from one to tbe other. Each room has a fireplace served by a stack-chimney constituting a part of tbe partition between them. Such was tbe character of tbe bouse— essentially an ordinary business bouse, with tbe usual smaller room at tbe back of it.

Noav, as to tbe uses to which it was put. "When tbe building was completed, about 1887, Jones carried on tbe business of a retail liquor-dealer in tbe front room, and bad an illustrated sign painted on tbe outside of tbe building proclaiming bis business. In 1890, and thence up to the time of tbe levy and trial, Jones rented tbe front room with its bar-fixtures, &c., to one Landrum, who continued tbe liquor business therein. In 1887, Jones, who is an unmarried man, fitted up tbe back room as a bed-room, and has continued to occupy it as such ever since. This room was not let to Landrum along with tbe other, but since be has been Jones’ tenant of tbe main room be has, by permission of tbe latter, also sle^t in tbe back room. Jones does not, and never has taken bis meals in this bed-room, or in tbe bouse, but boarded at tbe bouse of one Dawson situated in another part of tbe town.

On these facts, there can be no doubt that tbe primary adaptation of tbe building is to tbe purposes of business, and that its principal uses are, and have always been, tbe uses of trade, and not those of domiciliary occupation. Tbe authorities are by no means uniform as to what will or will not be considered a homestead, when tbe building claimed as snob is in part adapted and devoted to business pursuits, and in other part used as a dwelling; but we think it may be laid down as a safe and conservative rule on that subject, that where the trade adaptation and use of a building is incidental of secondary only to its habitation as a dwelling — where the chief use of the structure is that of a home for the owner, and some part only not essential to this end is fitted up and used as a shop, an of6.ee or salesroom — it is a homestead; but, when this state of facts is reversed, and the residence feature is only auxiliary to the business use — where only a relatively small part of the building is devoted to the uses of habitation, and the chief adaptation and use are those of business — the building is not a homestead, even though the occupant have no other home, and uses this for all the purposes of living. Illustrations will readily suggest themselves. For instance, the owner of an hotel, erected for and adapted to the purposes of public entertainment, would not have homestead therein though he resides there with his family; but the owner and occupant of a private house would not be deprived of the exemption through the fact that he rented rooms to lodgers and entertained them, or even travellers, at table for a consideration. A professional man would not lose the exemption by reason of devoting some part of his dwelling to the uses of his profession; but if a physician, for instance, should make a public infirmary of his residence, and continue to live there merely as an incident to the conduct of the hospital, we apprehend homestead would be lost. — Ackley v. Chamberlain, 16 Cal. 181; Luzell v. Luzell, 8 Allen, 575 ; Mercier v. Chase, 11 Allen, 194; Goldman v. Clark, 1 Nev. 607 ; Harriman v. Ins. Co., 49 Wis. 71; Laughlin v. Wright, 63 Cal. 113; Pryor v. Stone, 70 Am. Dec. 341, and notes, 348 et seq.

Guided by this rule, our conclusion would be against the defendant’s right of homestead, even if he had used the house in question for all the purposes of residence. . A fortiori, must that conclusion be reached in view of the fact thatthe only occupation of the premises by the defendant consisted in the fact that he with another, there by his license, used a small back room of this storehouse as a bed-room, and kept his personal effects there, while he ate at another place situated in a distant part of the town. The case presented, in view of this fact, is the usual one of occupation of the back room of a storehouse for sleeping purposes only; and it would be anomalous to a degree to hold that to be the residence — the home — of the occupant, which is saved to him by our homestead laws.

This precise point has been ruled by tbe Supreme Court of Texas; and we can not do better than close this opinion by quoting tbe language there employed : “We think that tbe facts in tbe present case show that tbe premises in controversy in this suit did not constitute tbe homestead of tbe appellee He used tbe premises for business purposes, and slept in one of tbe rooms of tbe bouse, but at tbe same time took bis meals habitually at another place. A man’s homestead must be bis place of residence ; tbe place where be usually sleeps and eats; where be surrounds himself with tbe ordinary insignia of home, and where be may enjoy its immunities and privacy. We do not think that the facts in this case show that tbe appellee used tbe premises as a homestead at tbe time of tbe sale under execution.” — Philleo v. Smalley, 23 Texas, 498.

Tbe Circuit Court erred in giving tbe affirmative charge for tbe defendant; and its judgment must be reversed. Tbe cause is remanded.  