Contest of a homestead exemption. Under the statute the plaintiffs, contestants, - must sustain the burden of proving that the lands levied upon are subject to the levy. Or if a homestead, that its-value exceeds two thousand dollars. The institution of the suit is the levy in which the plaintiff is the actor. Section 2052 of the Code; McCrary v. Chase, 71 Ala. 540;Kolsky v. Loveman, 97 Ala. 543.
The single issue presented by this contest is whether the land levied upon, at the date of the levy, was the *418homestead of the defendant. The onus upon the trial was, as we have said, upon the plaintiffs, contestants, to show that it was not.
The writ of attachment was sued out on the 5th day of December, .1901, and levied upon the lands in controversy two days later. At and prior to the day of the levy, the defendant, with his family, was'residing upon a forty acre tract of land which he had rented from one Costello for the years 1901 and 1902. He had previous to the levy of the attachment purchased the two pieces of land levied upon, both of which were contiguous to and adjoined the leased premises upon which he resided. One of the parcels, comprising forty-five acres, he acquired from one Remley; the other, comprising thirty-five acres, he acquired from Costello— making the entire tract, including the rented lands, one hundred and twenty acres.
It is of no consequence what the character of his estate in any portion of the one hundred, and twenty acre tract was or may have been at the date of the levy. So he had an estate in that portion of the tract upon which he resided, whether a fee or less, is all that is required, provided it was the dwelling place of his family and was used and occupied as such. — Section 2033 of the Code. “There is no limitation to any particular estate, either as to duration, quality or extent. It is the land upon which the dwelling place of the family is located, used and occupied as a home, which the constitution and statute protects, however inferior may he the title, or limited the estate or interest.”— Tyler v. Jewell, 82 Ala. 93; Griffin v. Chattanooga Sou. R. R. Co., 127 Ala. 570. Nor can it be of consequence that defendant acquired the tract in parcels at different times or that his estate in each parcel may be different in degrees. — Waples on Homestead and Exemptions, .par. 9, 115. He is, as against the plaintiffs, the owner of the tract in its entirety and if, as here, the entire tract, does not exceed one hundred and sixty acres and two-thousand dollars in value, the whole of it is his homestead and exempt from the payment of his debts. Nor is it of importance that tenants may *419have occupied, at the date of the levy of the attachment, a portion of the parcels acquired from Rem ley and Costello. The owner of a homestead may, if he chooses, rent out a portion of the tract without subjecting the portion so rented to the payment of his debts.
The charge given at the request of the plaintiffs was clearly 'erroneous. It is unnecessary to review the charges refused to the defendant, since upon another trial on the facts disclosed he will be entitled to have an affirmative instruction given in his behalf.
We are unable to see the relevancy of the affidavit, and bond which were allowed in evidence against the objection of defendant. — Dollins v. Pollock, 89 Ala. 361.
Reversed and remanded.