M'Loy v. Arnett

• Decision Date: 20 November 1886
• Citation: 2 S.W. 71
• Parties: McLOY and another <I>v.</I> ARNETT and another. ARNETT and another <I>v.</I> McLOY and another.
• Court: Arkansas Supreme Court

2 S.W. 71

McLOY and another

v. ARNETT and another.

ARNETT and another v. McLOY and another.

Supreme Court of Arkansas.

November 20, 1886.

Action of ejectment. Judgment for plaintiffs. Defendants appeal.

McCain & Crawford and U. M. & G. B. Rose, for appellants. I. M. & J. G. Taylor, for appellees.

SMITH, J.

The minor children of Samuel F. Arnett, deceased, brought ejectment for a town lot which had been their father's homestead. The title of defendants was acquired from Arnett's widow. She had applied to the probate court for an assignment of dower in certain real estate owned by her husband during coverture, and alienated by him without her consent in legal form; and also for a reservation of homestead in the town lot. Her prayer for homestead was rejected, in lieu of which dower was admeasured to her in the homestead premises, the line passing through the center of the wall of the dwelling-house. In 1873, Arnett having died in the year preceding, the circuit court, then exercising probate jurisdiction, had, at the instance of creditors, directed the administrator to sell this lot, subject to the widow's dower and homestead. At this sale the widow became the purchaser of the reversionary interest, and the sale was approved, and a conveyance made to her. She afterwards remarried, and she and her husband either mortgaged the lot to McLoy & Trotter, or sold it to them absolutely, with the privilege of repurchasing within a given time. Under this deed the defendants obtained possession. And they further pleaded the betterment act.

To the pleas of title a demurrer was sustained, while the pleas asserting a lien on the lot for taxes paid and repairs made were adjudged to be good. The issue of fact so raised was tried before the court without a jury, upon the following agreement as to facts:

"We hereby agree that the following statement of facts may be read in evidence in this cause on behalf of the plaintiff: That Samuel F. Arnett was a married man, the head of a family, a resident and citizen of the state of Arkansas, and owned and occupied the premises in controversy, together with the dwelling and appurtenances thereon, as a homestead; and that said premises did not exceed one acre of land, and are worth not exceeding $2,000; that the same was in the town of Monticello; that he so owned and occupied the same up to and at the time of his death, in 1872; that he died leaving a widow, and two minor children, viz., Lena and Jesse Arnett, the plaintiffs herein; that the plaintiffs, Lena and Jesse, are still under the age of 21 years; that his widow, Mary M. Arnett, remained unmarried until 1874, when she intermarried with one George Foreman, and took another homestead in her own right, in 1878, carrying the children with her, and she is still living; that defendants, McLoy & Trotter, have had possession of said premises since the twenty-fourth day of January, 1883, receiving the rents and profits thereof, and are still in possession of same; that the rents for the year 1883 were reasonably worth $8.33 per month, and for 1884 and 1885, $12.50 per month; that they have not paid those rents to these plaintiffs. And in behalf of defendants the following: Defendants, peaceably and in good faith, believing themselves to be the true owners, after they took possession, made valuable and lasting improvements on the premises of the value of $350, of which amount $125 was made on the dower part, and $225 on the remainder. The rents for that claimed as dower are two-fifths of the rents of the whole. To redeem and pay taxes on the premises, the defendants expended $65.50 in currency.

                    [Signed]                              "W. S. McCAIN, for Defts
                                                          "WOODS & HYATT
                                                          "J. M. &. J. G. TAYLOR
                                                                   "For Plaintiffs."
                

The court found that the plaintiffs were entitled to the possession of all the premises sued for, but that the defendants were entitled to recover from the plaintiffs $70.50, being the excess of taxes and improvements over rents. Judgment was therefore given for the plaintiffs, but it was directed that no writ of possession issue until the aforesaid sum of money was paid by them.

The rights of the parties are governed by the provisions of the constitution of 1868 on the subject of homesteads; and whether that constitution be regarded as creating a new estate, unknown to the common law, or merely as protecting the minors' right of occupancy until they attain their majority; whether the reversion of the homestead is or is not subject to sale for the debts of the decedent,—the pleas of title present no bar to the action. The exemption descends to the widow and infant children; and, after the widow's right has ceased by death or remarriage, the children, if still under age, have such an estate and right of possession as will enable them to support ejectment against any one in possession who does not claim by a title superior to that of their father. The purchaser, at a probate sale of the tract of land to which the homestead of a deceased parent appertained, must take notice of the minor's right, and, if he use the homestead for his profit or convenience, must account to the minor for the rents. Booth v. Goodwin, 29 Ark. 633; Altheimer v. Davis, 37 Ark. 316. And here we might appropriately close the discussion of this branch of the case, having said enough for the proper disposition of this appeal, and leave the parties to settle by litigation, after the plaintiffs shall have come of age, what estate the defendants have obtained in the premises, or whether they have obtained any But as the question is squarely presented, and has been argued, and as the decision of it now, while the parties are before us, will save further litigation, we proceed to consider whether, under the constitution then in force, the reversionary interest of the estate of a deceased person could be ordered to be sold to pay his debts.

The language of the constitutional provision is: "The homestead of a family, after the death of the owner thereof, shall be exempt from the payment of his debts, in all cases, during the minority of his children, and also so long as his widow shall remain unmarried, unless she be the owner of a homestead in her own right." Const. 1868, art. 12, § 5. From this and other sections of the same article, it is plain that the framers of that constitution did not intend to place the homestead entirely beyond the reach of creditors. The right is a temporary one, and, upon its cessation, the homestead falls back into the residuum of the estate, and becomes subject to administration. Cohn v. Hoffman, 45 Ark. 383, 384, and cases cited. The provisions for the debtor's exemption is in these words: "Every homestead, owned and occupied by any resident of this state, shall be exempted from sale on execution, or any other final process from any court," except for certain privileged debts. Const. art. 12, § 3. Notwithstanding a judgment was a lien on the homestead, and the debtor's right was practically limited to the enjoyment of the property as a homestead, he being unable to sell or leave it without forfeiting his privilege, yet, so long as he resided on the land, the creditors could not seize and sell the reversion. Grubbs v. Ellyson, 23 Ark. 287; Hughes v. Watt, 26 Ark. 228; Greenwood v. Maddox, 27 Ark. 648; Lindsay v. Norrill, 36 Ark. 545; Tucker v. Kenniston, 47 N. H. 267; Wiggins v. Chance, 54 Ill. 175.

Black v. Curran, 14 Wall. 463, professing to follow the local law of Illinois, decided that the fee in the homestead tract could be sold under execution subject to the debtor's right of occupancy, and that the purchaser took the absolute title when the homestead right ceased. But in Hartwell v. McDonald, 69 Ill. 293, it is said that the supreme court of the United States had wholly misconceived the Illinois statute, and the decisions construing it. And it may be regarded as settled law that an execution sale of a homestead, when the debtor claims his exemption, if he is required to claim it, is void, and has no effect on the title beyond casting a cloud over it. Freem. Ex'ns, § 239.

Now, there can be no distinction between a forced sale of the debtor's homestead in his life-time and of his widow's and children's homestead after his death. The constitutional inhibition is as peremptory in one case as the other. The term is used throughout in its defined legal sense,—the place of a house or home; that part of a man's landed property which lies about and contiguous to his dwelling-house, with the improvements and appurtenances. Tumlinson v. Swinney, 22 Ark. 400. And so the homestead act of 1852 was construed in Booth v. Goodwin, supra. The effect of it was declared to be to suspend the rights of creditors until the youngest child came of age. But the language of the constitution is still more unequivocal than the act of 1852. This court has repeatedly announced that an administrator has no interest in the lands of his intestate, and no control over them, except to subject them to the satisfaction of general creditors. It is a corrollary from our administration statutes. Now, the constitutional provision means precisely what it says,—that the homestead of the deceased debtor shall be exempt from liability for his debts during the minority of his children. Such is also the legislative interpretation of the constitution, as may be seen by reference to the act of April 25, 1873, which makes it a misdemeanor, punishable by fine and imprisonment, for an administrator to attempt to sell the homestead after it has been reserved for the benefit of the widow and children.

Under that constitution, then, neither the probate court, while it was in existence, nor its successor, the circuit court, had any jurisdiction to order the sale of the homestead of a decedent for the payment of ordinary debts...