24 Ark. 155 (Ark. 1863), McKenzie v. Murphy

Citation24 Ark. 155
Opinion JudgeMr. Fairchild, Justice.
Party NameMcKenzie v. Murphy.
AttorneyGarland & Randolph for the plaintiff Pope & Newton, contra.
CourtSupreme Court of Arkansas

Page 155

24 Ark. 155 (Ark. 1863)

McKenzie

v.

Murphy.

Supreme Court of Arkansas.

June, 1863

��������� An alien domiciled in this state, being a householder or head of a family, is entitled to the exemption of his homestead from sale on execution.

���������Unless the terms of a statute are entirely free from ambiguity, regard must be had to its known object, to the mischief intended to be provided against, to its general spirit and intent. ( Patterson v. Thompson, 23 Ark .)

���������The word citizen is often used as meaning only an inhabitant, a resident of a town, state or county, without any implication of political or civil privileges: and such is the meaning of the word in the homestead law.

��������� Error to Phillips Circuit Court. Hon. M. W. Alexander, Circuit Judge.

���������Garland & Randolph for the plaintiff

��������� No person but a free white citizen of this state can claim the benefit of the homestead exemption. Sec. 29, ch. 68, Gould's Digest .

���������We maintain that no one is a citizen unless he is a citizen of the United States. This conclusion is warranted by the provisions of chapter 9, Gould's Digest, which extended to aliens, or persons not citizens of the United States, rights and privileges, which they were already entitled to if citizens of the state. See secs. 1, 5, bill of rights; State v. Penney, 5 Eng. 621; secs. 2, 4, 6, art. 3, State Cons. The definition of the term citizen, would appear to clear up all doubt on the question. It is " one who is in the enjoyment of all the rights to which the people are entitled, and bound to fulfill the duties to which they are subject." Amy v. Smith, 1 Litt. R., 334; Bouvier's Inst., vol. 1, p. 64. To obtain the benefit of the act the party must show that he is within all its provisions: that he is free, white, a citizen of the state, a householder or the head of a family, and a resident on the homestead claimed.

���������The court should have excluded the certificate of the clerk that Murphy was naturalized. It was not competent evidence of the fact. Miller v. Reinhart, 18 Geo. R., 239; 1 Williams ( Verm .) 621; 2 Jones ( N. C .) Law R., 368.

���������Pope & Newton, contra.

���������The certificate of the clerk of Phillips circuit court, though somewhat informal, was sufficient evidence that Murphy had been fully and properly admitted to citizenship by a court of competent jurisdiction; and was conclusive as to all the facts recited therein or necessarily implied. Spratt v. Spratt, 4 Pet. Rep., 407; Campbell v. Gordon and wife, 2 Cond. Rep., 343; Towle's case, 5 Leigh, 743; State v. Penny, 10 Ark., 621.

���������By " citizen" we generally understand a person not only domiciled within a state, but entitled to all the privileges and franchises thereof. But this is not the only sense, even in strict law, in which it is used. In ordinary use, it is frequently taken to mean the residents of a place, and so in law the word means nothing more than domicil: 2 Cranch., 64; 7 Cranch., 308; 8 Cranch., 335; 2 Gal. C. C. R., 268; 6 Hall's Amer. Law Jour .

���������Citizenship of the United States is not necessary to constitute one a citizen of a state. Residence determines state citizenship as distinguished from that of the United States. See Clark v. Clark, 5 Mason, C. C. R., 70; Cooper's Lessee v. Galbrath, 3 Wash. C. C. R., 546. The same distinction is taken in the constitution and laws of this state. Art. 4, sec. 2, Cons.; ib. secs. 20, 21, 22; art. 2, sec. 4. Gould's Dig., ch. 9: It is submitted, that it is not necessary, to entitle the defendant to avail himself of the homestead exemption, to show that he was, or is a citizen of the United States. Nothing was necessary but to show that he was a free white citizen of the state. Residence, with the intention to make this his permanent home, constituted him a citizen within the meaning of the act.

���������OPINION

���������Mr. Fairchild, Justice.

��������� This case was tried in the circut court of Phillips county at its May term, 1860, and was an action of ejectment by the plaintiff in error, against the...

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