Bank of Quitman v. Mahar

• Decision Date: 03 May 1937
• Docket Number: 4-4648
• Citation: 104 S.W.2d 800,193 Ark. 1111
• Parties: BANK OF QUITMAN v. MAHAR
• Court: Arkansas Supreme Court

104 S.W.2d 800

193 Ark. 1111

BANK OF QUITMAN v. MAHAR

4-4648

Supreme Court of Arkansas

May 3, 1937

Appeal from Faulkner Circuit, Court; J. S. Utley, Judge on Exchange reversed.

Judgment reversed and cause remanded.

Clark & Clark, for appellant.

George F. Hartje, for appellee.

OPINION

MCHANEY, J.

In his lifetime, William McAnless owned two farms in Faulkner county, Arkansas. One was a 96-acre farm and the other a 34-acre farm, the latter being about a mile distant from the former. He lived on the 34-acre farm at the time of his death which occurred in 1923. He left surviving him his widow, his daughter, Gracie, who, some time later, married L. S. Mahar as his only heir-at-law. The widow and daughter continued to live on the 34-acre tract. Some time prior to June 15, 1935, appellee, her husband and mother, executed their joint note to appellant for borrowed money and on July 15, 1935, appellant obtained a judgment in the Faulkner circuit court against all three in the sum of $ 442.25, with interest and costs. On August 20, 1936, appellant caused an execution to be issued on this judgment and the sheriff levied upon said 96 acres of land. On August 26, 1936, appellee filed a schedule of her property and claimed the 96-acre farm exempt as her homestead. Appellant filed a response and exceptions to her claim of exemptions, alleging that said lands were not her homestead and that she resided on other lands which she owned and had willfully withheld from her schedule. The clerk of the court sustained her claim of exemptions and issued a supersedeas. Appellant then filed in the circuit court a motion to quash the supersedeas on which a trial was had and the court, sitting as a jury, denied appellant's motion to quash and sustained the action of the clerk, from which is this appeal.

The question presented on this appeal is: Did appellee ever impress the 96-acre farm with the homestead character? At the outset it may be stated as well settled that mere intention to establish the homestead character to land without actual occupancy is not sufficient. Nor is mere occasional occupancy of it sufficient to impress it with the homestead character, if in fact his actual residence is elsewhere. One of our leading cases is Tillar v. Bass, 57 Ark. 179, 21 S.W. 34, where it was held, to quote a syllabus: "Neither the intention of the owner of land to occupy it as his homestead, nor his occasional occupancy of it, as during harvest for the purpose of gathering his crops, will be sufficient to impress it with the character of a homestead if his actual home residence was elsewhere." In that case Tillar and Stanley recovered judgment against Bass and procured an execution to be levied upon certain land belonging to him which he claimed exempt as his homestead. The clerk sustained his schedule and issued a supersedeas staying the execution. The plaintiffs applied to the circuit court, which sustained the right of homestead. This court reversed the judgment. In the opinion in that case, Judge BATTLE used this language, referring to appellee Bass: "He testified that his intention, during the entire time he owned it, was to make his land his home, and that he 'considered' it his home after he built the new house and moved his bed. But his occupancy before and after he built the new house, and until he moved his family, was of the same character, he working and sleeping there while cultivating and gathering crops. There was no evidence that he moved his household goods, domestic animals and other property, which usually attend the change from one to another home in the country. His family remained away. His stay was more like camping than a residence. It was not homelike. In short, there was no evidence to show that he actually and in good faith occupied his land as a residence before the levy of the execution. His intention to do so at a future time, and failure on account of his wife's condition, did not endow it with the character of a homestead. It was, nevertheless, subject to sale under execution at the time it was levied on."

It will be seen, therefore, that one must actually and in good faith occupy land as a residence, before the levy of an execution to impress it with the homestead character and to make it exempt from the levy of...