The bill in this cause was filed by the First National Bank of Russellville as judgment creditor of William Trapp, to set aside two deeds to separate tracts of land executed by said William Trapp to his daughter, Meney Trapp, on January 7, 1925. One of the tracts of land contained 52 acres, and is referred to as the homestead land; the other consisted of 60 acres. At the time of the execution of these two deeds there was pending the suit by complainant against William Trapp, which resulted in the judgment, a certificate of which was filed for record February 21, 1925.
These conveyances are attacked upon the ground they were executed without consideration and for the purpose of delaying and defrauding creditors. The burden of proof rested upon the defendants "to show the bona fides of the transactions, * * * and the circumstance that they were had between near relatives calls for a closer scrutiny than where strangers are engaged." Cowan v. Staggs, 178 Ala. 144, 59 So. 153; Watters-Tonga Lumber Co. v. Knox, 206 Ala. 183, 89 So. 497.
As to the 52-acre tract, defendants insist it constituted the homestead of William Trapp, in value less than $2,000, and therefore exempt to him, and no injury resulted to any *Page 589 creditor by its conveyance. At the time of the conveyance said William Trapp was not residing upon the land, but with his daughter, Meney, was living with his son-in-law, Harris, on lands near by. This tract had constituted the homestead and had been occupied by said Trapp and his daughter, who constituted his household, but in the early part of 1924 they moved to the Harris home, moving some of his household effects, and leaving some in the house on the place. Here they remained two years. Defendants state the move was on account of the condition of the daughter's health, and the necessity that her father be absent a good portion of the time. During this time, however, Trapp rented the house and the land to one Stokes, who cultivated the land on shares, under circumstances to create the relation of landlord and tenant. Section 8807, Code of 1923. And, indeed, the witnesses state that Stokes "rented" the place. Trapp's stock that was left on the place was used by Stokes in his farming. It appears that Trapp cultivated a small portion of the land himself, and used his horse, which Harris testifies he kept in his (Harris') barn.
It is not pretended there was filed any declaration of claim of homestead exemption, as provided by section 7914, Code of 1923. "Actual occupancy as a home except where declaration is filed under the statute, is essential to the validity of a claim of exemptions." Cowan v. Staggs, supra. Speaking of the statute as it now exists, this court in Smith Lumber Co. v. Garry, 202 Ala. 473, 80 So. 857, said:
"The effect of this change is to render any leasing which transfers the exclusive possession to the lessee for any definite term an abandonment of the homestead right, unless it is saved by the statutory declaration and claim required, and to preserve the homestead right, if so claimed, regardless of the length of the term of the lease."
It was also there held that it was a matter of no consequence that some of the claimant's property remained on the premises. See, also, Miles v. Miles, 211 Ala. 26, 99 So. 187; Fuller v. Amer. Supply Co., 185 Ala. 512, 64 So. 549; Land v. Boykin,122 Ala. 627, 25 So. 172; Bland v. Putman, 132 Ala. 615,32 So. 616; Cowan v. Staggs, 178 Ala. 144, 59 So. 153.
Under what arrangement Trapp cultivated a small portion of the land at the time Stokes had the place rented and occupied is not made to appear. Very clearly, the mere fact, without more, that he did so, can have no influence upon the result here. There was here no mere temporary absence from home, but a rental of the place, including, of course, the house, an exclusive possession for a definite time; and we are of the opinion the case comes within the influence of Smith v. Garry, supra, and other authorities.
Appellants lay much stress upon Taylor v. Gallaha, 212 Ala. 474,103 So. 457, but it appears from the body of the opinion that this was only a temporary absence from the home with a caretaker left in charge of the premises. The case is readily distinguishable from that here presented.
The court correctly ruled that the homestead exemption had been lost to the debtor.
As to the 60 acres the defendants insist this tract was sold by William Trapp to his daughter, the consideration being a pre-existing debt alleged to have been due by the father to the daughter. The father claims to have been indebted by reason of the use of funds of the daughter; but the record does not contain "clear evidence of ability" on her part to accumulate the fund (Watters-Tonga Lumber Co. v. Knox, supra), and there appears contradictory, vague, and indefinite statements in the testimony of the father and daughter, the only material witnesses upon this issue.
The evidence is not voluminous, and has been read and considered with much care. Since the passage of the Act of 1915 (Acts 1915, p. 594). it has been the policy of this court not to enter into a detailed discussion of the evidence (Caples v. Young, 206 Ala. 282, 89 So. 460), nor would it here serve any useful purpose. Suffice it to say that upon due consideration we find ourselves in accord with the conclusion of the chancellor, that defendants' testimony upon this point will not stand the close scrutiny of a court of equity, and that they have failed to sustain the burden resting upon them to establish the bona fides and fairness of the transaction here involved.
It results the decree will be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.