The Montgomery advertiser., 1903-12-16

stead exemptions is largely within the discretion Of the trial court and is not snnJsnt % demurrer or governed by the ruies of former pleading; and an issue presented is suincient it 1t is broad enough ko admit any competent evidsnce tending to aa6w whether the property in contest, or say. or what part of 1t is exempt as claimed.
 5. Partition of lands, effect as to trans ferring lien.--A talr and equal partition Of lands by mutual agreement and eA- change of deeds between the tenants tn common will operate to transfer Hen pr incumbrancs wnieh may exist upon an un- divided share or interest of one Of the ee- tenants to the share or interest allotted in seysraity by the partition Of such CO., tsnant, and this is rule, although the Hem holder or incumbgancer is not a party to the transaction.
 6, Partition Of lands; effect as to trans ferring Hen; homestead exmptiop-Whsre the dstendant in 6 judgment, certificate Of which has been recorded in the office of the Judge of Probate. owns as tenant in common of an undivided one-third ip- terest In property which is subject to the Hen Of said judgment. and subsequent to the hling of the certificate of said judg- ment in the office of the Probate Judge there is partition between him and his two co-tenants of the land owned in coni- mon by them, whereby his co-tenants coEl- veyed to him by deed their undivided ip- terest in the lot which Is used by him as part of his homestead, in exchange for his undivided interest tn the property to- which the lien of the judgment had attached. the undivided interest so ac- auired from his eo-tenants, although con- stituting part of his homestead. is sub feet to the lien of his judgment; the par tition having the effect of transferring the lien which had attached to the other property owned in common, to the share allotted to him in severalty.
 I. Contest Of homestead exemptions; question as to when property became the homestead the contest of claim of exemptions, where it Is shown that upon the recovery of judgment the plaintiff filed Q certificate thereof in the office of the Judge of Probate. and some time thereafter an execution upon said iuds- ment was issued, which was levied upon the property claimed as a homestead. and one of the issues presented Is that the defendant was not entitled to claim the property levied upon as homestead, the inquiry in such issue ls whether the lot levied upon was used as a part of the homestead at the date when the Hen of the judgment attached, by reason of t.ls filing of the certificate, and not whether the lot 50 levied upon was his homestead at the date of the levy of the execution.
 8. Contest of claim of exemptions. ad- instability ln evidence of certificate of Judgment. Where after the filing of a certificate of @ judgment in the office of the Judge of Probate. an execution upon said judgment is issued and levied upon property of the defendant therein, who tns terposes . claim of homestead exemp- tons, which is contested by the plaintiff, on the trial of such contest of homestead exemptions, the certificate of the Judg- ment which was filed in the Otilcs of the Judge of Probate is material and reie- want to the issue involved, and the obs jection to the introduction in evidence of such certificate, upon the ground thai it Is lmfnateriai and irrelevant, Is properly oyeRruted.
 Q. Same, eame.--In such & case, after the introduction in evidence of such eer~ tificate of the Judgment, motion to ex. elude said certificate ''bscaiise 1t ls shown that t Is not . portion of the files of the Probate ofilcs," ts properly overruied; the statute not requiring that the certificate Vk the judgment should remain on file or among 'the papers in the office of the Judge of Probate.
 11s 62fstNs AAAAAso14CfhASS GN SAAeBe~tNfshfN In such case. the judgment recovered by the plaintiff in the contest against the defendant, is admissible in evidence.
 n. Contest of homestead ekemptionaI charge of court to jury.-on the trial of the contest of homeetead exemptions. where one of the issues presented ia af- ijrmativeiy sustained by the evidence, . charge requested by tbe plaintiff in-- strueting the jury that # they believe the evidence they must find for the plaintiR on such issue is properly given.
 i3. Same; same.-in the contest of the claim of homestead exemptions. where one of the Issues is that the property claimed as exempt exceeds in value two thousand dollars, the question as to whether or not the property involved did exceed two thousand dollars is one for the determination of the jury.
 Affirmed.
 Opinion by Tyson. J.