[McGuire v. Van Pelt et al.] of all of it; for which reason, or some other, they failed to designate the land they were authorized to select, to go with the dwelling house, until their right to the homestead and interest in it had passed to another. And when the trust deed was made, the parties interested in it could not know that all except the homestead property would be required to pay the first mortgage debt; and that it was, therefore, important to have the homestead set off in severalty. In conclusion, there was, in my opinion, a homestead right in the tenants in common. It was granted and intended to be secured by the constitution; and having been conveyed by the trust deed to appellant, it became vested in him. For every right their ought to be a remedy. That there might be, the State has established its various judicial tribunals. And if, in the course of asserting an expressly granted constitutional right, questions must arise which a common-law court is not competent to determine, and other instrumentalities for their solution are not provided by law, the aid of a court of equity may be invoked for that purpose, and to uphold the right. The present case is a proper one for its interposition. Complainant and defendants were at variance in regard to their respective interests. According to the views hereinbefore expressed, the former, when this suit was brought, was entitled to the homestead on the premises in controversy, to the extent of its constitutional limits. But it was in fact an unascertained parcel of a single, entire, larger tract, in which defendants also had and claimed an interest; and the location and boundaries which would enable each party to hold in severalty, were not defined. Complainant, besides, is a trustee, who is answerable over to his cestuis que trust for the right performance of his duties; and he has shown a case which entitles him to the aid of a court of equity. If the allegations of the bill in respect to the execution of the mortgage and trust deed, and the sale under the former, shall be admitted by defendants, or proved by the evidence to be taken, and nothing be shown that would impair their legal effect, then the chancellor ought to decree the mortgage of 1871 void as to the homestead property, and that this passed to complainant by the trust deed made to him; and ought further, unless the parties come to an agreement on the subject, to appoint commissioners, and cause to be set off by netes and bounds the land embracing the dwelling-house and appurtenances, and most advantageous thereto, not exceeding in area eighty acres, or in value two thousand dollars, as the homestead property, to be holden in severalty by [McGuire v. Van Pelt et al.] complainant, subject to the trusts in said deed, and ought to cause him to be put in possession thereof. A majority of the court hold that the chancellor erred in sustaining the demurrer to the bill; and that his decree dismissing it must be reversed, and the cause be remanded for further proceedings in conformity with this opinion. STONE, J.-I have had much difficulty in solving the question, whether homestead can be claimed in lands of which the occupant is only a tenant in common with others. In personal property, held and owned in partnership, we have decided that the several partners can not claim exemption from sale on execution, under section 1, article XIV, of the constitution of 1868. The language securing the exemption under that section is so entirely like the language which protects the homestead for the use of the family under section 2 of same article, that I have found it difficult to draw a distinction between them. The argument of my brother MANNING has very nearly, if not entirely, relieved me of that trouble. Each partner has an interest in, and lien upon the entire partnership property, for certain purposes. As between themselves, the partnership effects stand pledged for the payment of the debts of the firm; and it is only after all the liabilities are cancelled, and a balance left, that the several partners can claim a separate, or separable interest. Till then, the assets are not the subject of separate ownership. I speak, of course, of partnership effects, while the relation of partnership continues. When it is dissolved, and the ownership becomes several, a different rule prevails. Between tenants in common, the relation is different. Each owns a separable interest, and neither, by mere force of the relation, has any lien on the interest of the other. One may alien or incumber his interest, without affecting or embarrassing the equal rights of the other. The exemption of the interest of one from the payment of debts does not impair, or take away from the other, any right he has in the property, or hinder the creditors of such other in the enforcement of any liens or rights they may have to go against such interest. I admit that, in allotting the homestead in lands held in common, some difficulties will be encountered. These difficulties will be enhanced, when, as in the present case, alienations have been made, which require a selection and carving out of the homestead, after the owner, in whose favor it is reserved, has ceased to have any interest, and, it is to be presumed, will not care to make the selection, if the right remain with him. Other cases might arise, in which it is not [McGuire v. Van Pelt et al.] unreasonable to suppose the owner may fail, refuse, or be mentally incapable of selecting the homestead. Would the homestead, thereby, become lost to the family? Suppose the owner dies before it becomes necessary to make a selection. The constitution makes no provision for the selection by the widow, or by any one else, in such case. Are all the beneficial provisions of sections 3 and 5 of article XIV of the constitution to be lost in such case? I think not. The varied and moulding powers of the Chancery Court would evidently come to the aid of such parties, and provide a remedy for the enforcement of this constitutional right. The exemptions provided by the constitution are not intended to confer property, or to increase the ownership therein. They only protect and leave the owner in the undisturbed possession of such interest as he owns. Hence, they do not convert a tenancy in common into a tenancy in entirety. They do not relieve estates of incumbrances, or make absolute estates out of partial ones. Their theory is, that they put a lock on the machinery of the law, and place exempted property without the power and influence of its process. The area of the exemption is not enlarged, to compensate for defects of title, or fractions of ownership. Such interest, and such only, as the owner has in the given quantity exempted, is reserved for the use of the family; and the owner and his family are permitted to retain and occupy it as it is, and only as it is. I approve the arguments of my brother MANNING, on this question, and concur in his conclusions. I incline to the opinion, that when the tract of land, on which a resident of this State resides-owned and occupied by him-exceeds the number of acres exempted, then the owner may select his homestead any where in the tract, although such selection may not embrace the residence; and that the phrase, "the dwelling and appurtenances thereon," simply means, that the homestead selected carries with it whatever dwelling and appurtenances may be on it. My brothers, however, think and hold that the homestead must be so selected as to embrace the dwelling and appurtenances in which the owner has his domicile. I do not dissent from their decision, but incline to the opposite opinion. VOL. LV. [Chambers v. McPhaul, adm'r, &c.] Chambers v. McPhaul, adm'r, &c. Petition by Widow for Allotment of Homestead. 1. Homestead exemption in favor of decedent's family.—The homestead exemption secured to a decedent's family by the provisions of the constitution (Article X. §§ 2, 3, 5), and of the act of 1873 (Sess. Acts 1872-3, p. 64), is the actual homestead of the decedent at the time of his death; and although that may be mortgaged, or held under a lease only, they can not select other property in its stead. APPEAL from the Probate Court of Jefferson. In the matter of the petition of Mrs. S. A. Chambers, the widow of J. G. Chambers, deceased, for the allotment of a homestead for herself and her two infant children, in a certain town lot in Birmingham; which was contested by the administrator and certain creditors of the deceased. The case was submitted to the decision of the probate judge, on the following agreed facts: "Said J. G. Chambers departed this life in July, 1873, leaving his widow, the petitioner, and two minor children under ten years of age; and on the 20th day of February, 1875, his estate was declared insolvent by the Probate Court. At his death, said Chambers owned a third interest in a house and lot in Birmingham, which was under mortgage, and was sold under said mortgage before the estate was declared insolvent. The house and lot described and claimed in the petition has been used a part of the time as a boarding-house, but, at the death of the decedent, was rented out as a store-house and work-shop; and the lower story is now used as a work-shop, and the upper story as a family residence; but J. G. Chambers never lived in said house, nor has his widow lived in it since his death, but, at the time of his death, he was living in the house since sold under the mortgage." On these facts, the probate judge held that the widow and children were not entitled to claim a homestead in the premises, and therefore dismissed the petition; and his decree is now assigned as error. W. S. EARNEST, for the appellant. R. H. PEARSON, contra. MANNING, J.—The only provisions of law that secure to 55 367 102 311 155 367 110 412 [Coleman v. Smith; Smith v. McQueen et al.] the family of a deceased person, or to his widow or children, a homestead right, are contained in sections 2, 3 and 5 of article X in the present constitution (the same as sections 2, 3 and 5 of article XIV of the constitution of 1868), or in the "act to regulate property exempted from sale for the payment of debts," approved April 23, 1873;" at least, these are the only enactments which are applicable to the case now before us. Whatever doubts and ambiguity may be created by the language in section 2 of those articles, concerning the option a resident owner may have in the selection of his homestead property, do not pertain to the sections of either the constitution or the statute which authorize the retention of the homestead for the benefit of the widow or children. That must be the place which is the actual homestead-the property occupied as such-and not exceeding the quantity prescribed. The option is not allowed to them of taking other property in its stead.-See Kaster v. McWilliams, 41 Ala. 302. If it be thought that the law is, therefore, unequal, and hard upon families that, like the one concerned in this case, live on mortgaged property, which may be taken away from them, or on property held by lease only, while there remains other property to which the title is perfect, and which would constitute a good home, the remedy must be sought of the legislature. The office of courts is to administer the law, not to make it. In this case, the property in question not having been the homestead of the deceased, Mr. Chambers, or of his family, the Probate Court did not err in dismissing the petition of appellants to have it allowed to them as such; and its judgment is affirmed. Coleman v. Smith. Smith v. McQueen et al. Bill in Equity for Injunction of Mortgage Sale, and Account and Settlement of Trust Deed; Cross Bill for Account and Foreclosure of Mortgage. 1. Homestead exemption; alienation by mortgage.-When the wife joins with her husband in a mortgage of the homestead, and the certificate of acknowl |