
    Glover v. Bass.
    
      Exemption Contest.
    
    (Decided June 10, 1909.
    Rehearing denied June 30, 1909.
    50 South. 125.)
    1. Execution; Form; Sufficiency. — -The law does not require that an execution should be upon one sheet of paper, and if on two, does not direct how they should be fastened, and hence, an execution embracing two sheets of paper, the second containing only the bill of costs, and- the constable’s endorsement and the two sheets pinned together, it is a valid execution.
    2. Somesteacl; Property Constituting. — A fee is not necessary to support a homestead right, and the right may attach to any possessory interest in land; a husband may have a homestead right in his wife’s lands as against his creditors; hence, hg can have a homestead in lands belonging to him and use in connection with adjoining lands which he occupied as a homestead, so that it would' not be subject to'levy on execution, though he had conveyed a one-third interest in the adjoining lands to his wife.
    Appeal from 'Washington Circuit Court.
    Heard before Hon. Samuel B. Browne.
    Contest of Exemption upon levy on execution by William F. Glover upon the lands of Harry Bass. The court directed a verdict for the defendant, and plaintiff appeals.
    Affirmed.
    Granade & Granade, for appellant.
    The court erred in excluding the return of the levy of the sheriff on the execution issued by tbe justice of tbe peace. This return may be endorsed either on the original execution or any paper attached thereto. — Green v. Pine, 1 Ala. 235; Tonlmin v. Lesesne & Edmundson, 2 Ala. 359; Bailey v. Dunlap Merc. Co., 138 Ala. 415; Johnson v. Dismukes, 104 Ala. 520. If it was the intent of the sheriff to make his return on part of the execution then it is sufficient even if there was not a strict technical compliance with the law. — Drewry v. Leinkauf, 94 Ala. 486; Murphy v. St. Louis Coffin Go., 43 South. 214. The paper constituted one and the same paper although but slightly attached. — Murphy v. St. Louis O. Go. supraj Boa'u-well v. Murrall, 108 Ala. 368; Gelbe v. Gelbe, 88 Ala. 427. The court erred in sustaining demurrers to the 1st, 4th, 5th and 6th grounds of contest. — Beard v. Johnson, 87 Ala. 729; Jafrey v. McGoiogh, 88 Ala. 648; Ttmier v. Turner, 107 Ala. 465. The court erred in permitting the deed from Nancy Bass to Harry Bass in evidence. — MoGreary v. Chase, 71 Ala. 540; Murphy v. Sunt, 75 Ala. 438; Mines v. Dunklin, 79 Ala. 114; Bailey v. Dionlap Mere. Go. su,pra. The appellee cannot claim the lands levied upon as a part of his homestead while the title to the lands afterwards occupied as a homestead remained in his wife. — Beard v. Johnson, supra; Bailey v. Dunlap Merc. Go. supra. On these authorities and on the following authorities, the court erred in giving the affirmative charge for the appellee, and in refusing a like charge to the appellant. — Turner v. Bernheimer, 95 Ala. 241; Thompson v. Mortaaae Go., 110 Ala. 400.
    Charles L. Bromberg, for appellee.
    The appellant has no standing in the circuit court because ihe attempted levy was void in that the sheriff failed to endorse upon the execution the fact that the defendant had no personal property known to him, or that it was insufficient to satisfy the execution. — Jones v. Calloway, 56 Ala. 46. The appellant took a non-suit with bill of exceptions, and therefore discontinued the further prosecution of the case in the circuit court. The appellant was the actor in the circuit court and it rested upon him not only to specify the grounds of the contest, but also to establish same by evidence, and the evidence being -indisputably in favor of the appellee, the court properly- directed a verdict for him.- — MoGreary v. Chase, 71 Ala. 540; Bailey v. Dunlap Merc. Co., 138 Ala. 415; Secs. 2046 and 2052, Code 1896.
   MAYFIELD, J.

Appellant brought his action against appellee, on account, in the justice of the peace court of Washington county, obtained judgment, and had execution issued thereon, Avhich execution was placed in the hands of the constable. The execution proper, the writ, was on one sheet of paper, and the bill of costs on another; the tAvo being pinned together only. The constable made his' indorsement upon the sheet Avhich contained only the bill of costs. A part of this indorsement Avas to the effect that defendant had no personal property subject to the process, and that levy had been made upon the S. E. % of the N. E. % of section 1, tOAvnship 8, range 2 W., as the property of the defendant. This process Avas then returned to the justice court, from where it issued. The justice thereupon transmitted the process, together with all other papers, to the circuit court, as required by section 4681 of the Code. In the circuit court, at the proper time, these papers (so certified) plaintiff made the basis of his motion, praying the sale of the 40 acres of land levied upon.

After the levy, but before the motion or proceeding-in the circuit court, the defendant duly made and filed in the probate office of Washington county his claim of exemptions — among other things claiming the particular 40 acres of land upon which the levy was made. The plaintiff thereupon made and filed a contest of that claim of executions, which contest was brought into the circuit court, and thus became a part of the motion for the sale. The defendant demurred to several grounds of the contest, which being sustained, the plaintiff took a nol. pros., with a bill of exceptions. This order of nol. pros., was, however, during the term set aside on plaintiff’s motion, and a trial of the contest was had; the court giving the general affirmative charge for the defendant. From the judgment rendered, plaintiff appeals.

It is insisted earnestly by the appellee that the levy was void, because the indorsements were a necessary part of it, and that as they were on a sheet of paper separate from the writ proper, being only pinned together, one was no part of the other. There is no- merit in this contention. The law does not require the execution to be on one sheet of paper’, and not on two. If on two, it does not direct how the two shall be fastened— whether pinned (as was the case here), glued, fastened with library paste, or with any of the numerous patented brads, clasps, or- pointed fasteners. The-writ gets its validity from the authority issuing it, and from Avhat is written on it, and not by virtue of the mode or means by which the sheets are fastened together. Except as to neatness and durability, the writ gets no efficacy from the glue or fastener by which its sheets are held together.

On the contest of exemptions, it seems, the plaintiff examined the defendant and proved that the land in question was a part of his homestead, or was used in connection with the 40 on which he resided as a part of his homestead. The plaintiff introduced a deed, executed by the defendant, conveying lands adjoining the 40. in question. This conveyance was void- as to the two-thirds interest attempted to be conveyed to his children, because the land was at the time his homestead, and because'his wife did not join therein, or acknowledge the same, as required by the statute. This the defendant sought to avoid by introducing in evidence, over the objection of the plaintiff, a deed, executed after the levy and after the claim of exemptions was filed by him, purporting to convey a part of the lands in question from his wife to himself. The court allowed all this evidence over the objection of the respective parties.

The homestead right may attach to any possessory interest in land. The fee is not necessary to support it. The defendant might have had a homestead right in this land, though he had conveyed a one-third interest in adjoining lands to his wife 10 years before. The case is thus differentiated from the case of Beard v. Johnson, 87 Ala. 729, 6 South. 383. None of this .evidencé could benefit the plaintiff contestant. A husband may have a homestead interest in the lands of his wife as against his creditors. — Reeves v. Peterman, 109 Ala. 368, 19 South. 512. The evidence in this ease, under any phase of it, showed beyond a doubt that the land in question was a part of the defendant’s homestead, whatever title he may have had thereto. It was not subject to levy, and consequently the judgment rendered was the only proper one, and no errors of the trial court can be availing to reverse it.

The judgment appealed from must be affirmed.

Affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ.-, concur.  