Berry v. Meir

• Decision Date: 18 January 1902
• Citation: 66 S.W. 439,70 Ark. 129
• Parties: BERRY v. MEIR
• Court: Arkansas Supreme Court

66 S.W. 439

70 Ark. 129

BERRY v. MEIR

Supreme Court of Arkansas

January 18, 1902

Appeal from Monroe Circuit Court, GEORGE M. CHAPLINE, Judge.

Reversed.

STATEMENT BY THE COURT.

E. F Berry, a negro merchant, is the owner of lot 3 in block 14 in the town of Clarendon, Arkansas. The lot is 75 feet by 125 feet in depth, and of the value of $ 900, including improvements. He purchased the north third of the lot, upon which was a storehouse, before he was married. He afterwards purchased the south two-thirds of the lot, built a residence on it, married and lived there with his family. He built a barn and smoke house on the north third of the lot, east of the store. A fence separated the residence part of the lot from that upon which the store was located, and there are gates from one lot to another. The store is used for his own business and convenience.

E. F Meir & Co. obtained a judgment against Berry, upon which execution was issued and levied upon the lot in question. Defendant thereupon gave notice, and filed with the clerk of the court a list of his property, and claimed the lot as his homestead and exempt. The clerk issued a supersedeas prohibiting the sale of the lot, and Meir & Co. appealed to the circuit court. In that court Meir & Co. filed a notice to quash the supersedeas as to the storehouse and north third of the lot on the ground that the defendant "held the same out to his creditors as a part of his assets, and the same was a basis upon which credit was extended to him, and it is therefore segregated, and liable to the judgments of the plaintiffs."

On the trial of the motion to quash it was shown that various other creditors had judgments against Berry on which executions had been issued. Louis Solomon, a traveling salesman for Solomon Brothers & Johnson, testified that Berry stated to him "that he owned the dwelling and storehouse on lot 3 block 14, in Clarendon, and said it was all liable for his debts," and that he sold Berry goods on credit because he said "the storehouse and goods were liable for his debts." A salesman for the house of Newman & Son testified to a similar statement made by Berry to him. It was shown that Berry assessed his property as "N. 1-2 lot 3 block 14, $ 250; S. 1-2 lot 3, block 14, $ 400;" and that he mortgaged the south two-thirds of the lot to the Cumberland Building & Loan Association of St. Louis, and in this mortgage he and his wife expressly "waived and conveyed all their rights of homestead in the land mortgaged." It was also shown that in the latter part of the year 1898 Berry conveyed the north one-third of the lot to his wife, the consideration being "love and affection." Berry testified in his own behalf, and said that he purchased and improved the lot for a home; that he conveyed a part of the lot to his wife because he had promised her to do so; that the whole lot and improvement were worth about $ 900, and that he claimed all of it as a homestead.

On this evidence the court found that the north part of the lot, upon which was the storehouse having 25 feet front and running 60 feet back, "had been separated by the defendant Berry from the remainder of his homestead lot, if it had ever been a part thereof and put into his mercantile business as so much capital." He thereupon quashed the supersedeas as to that part of the lot, and authorized its sale under the execution. Berry appealed.

Judgment reversed and case remanded, motion quash.

C. F. Greenlee, for appellant.

Appellant did not lose his right of homestead by erecting the storehouse on the south two-thirds of the lot. 37 Ark. 298.

J. P. Lee Parker & Parker, and M. J. Manning, for appellees.

The declarations and acts of appellant amounted to a segregation of the storehouse from the rest of the homestead. 55 Ark. 126; 37 Ark. 298; 44 Ark. 474; 10 Pet. 25.

RIDDICK J., dissenting. WOOD, J., concurred in the dissenting opinion.

OPINION

PER CURIAM.

The question presented by this appeal is whether the storehouse owned by the appellant Berry is a part of his homestead. He is the owner of lot 3 of block 14 in the town of Clarendon, and resides with his family in a dwelling house on that lot, all of which he claims as a homestead. Certain of his creditors had an execution levied on the lot, and contended that the north part of it, on which the storehouse is located, is not a part of the homestead, nor exempt from execution. Although this storehouse was used by the debtor himself in his own business, there are decisions by the courts of other states to the effect that such a storehouse, entirely separate from the residence of the owner, and not used as an appurtenance or convenience of the dwelling house, is not a part of the homestead. In re Allen, 78 Cal. 293, 20 P. 679. But a majority of the judges are of the opinion that this court is committed to a different view of the law. In Gainus v. Cannon, 42 Ark. 503, Mr. Justice Eakin, speaking for the court, said: "It is a strange and irrational idea sometimes advanced that a man ought to lose his homestead as soon as he attempts to make any part of it helpful in family expenses." To like effect, see remarks of the same judge in Klenk v. Knoble, 37 Ark. 298. This view of the law certainly works no injustice to the creditor where the value of the homestead, including the shop or store used for the business convenience of the owner, is small, as it is here, the whole being of the value of $ 900. Under these circumstances a majority of the judges are of the opinion that the execution defendant can hold the entire lot as a homestead, including that part occupied by his storehouse, unless he has done something to estop him from doing so.

After a careful reading of the transcript, we are all of the opinion that the evidence shows neither a waiver of this homestead right by appellant, nor anything to estop him from claiming such exemptions. The fact that he and his wife mortgaged the south two-thirds of the lot to a building and loan association, and released their rights of homestead in the land mortgaged, does not show that they claimed only the portion mortgaged as a homestead, for they had the right to mortgage all or any portion of the homestead. To our mind this mortgage shows nothing beyond the fact that the part mortgaged was thought to be at least a part of the homestead. Whether it was all or only a part cannot be determined from the mortgage, which throws no light on that question. The deed to his wife of the north third of the lot shows that he intended to convey that portion of the lot to her, but it does not show that it was not a part of the homestead at that time. If it was a part of the homestead, and the deed left any interest still in him, it could still be protected from sale under execution as a part of the homestead. The statement of the appellant made to Louis Solomon, and also to Will Thomason, that "he owned the dwelling house and storehouse on lot 3, block 14, and that it was all liable for his debts," and by which statement they say they were induced to sell him goods, cannot control the decision in this case. In the first place, these statements were not made to Meir & Co., the plaintiffs; and, if they had been, they did not amount to a waiver of the appellant's homestead rights. It is often the can that men, when contracting debts, express their determination to pay them by saying that all they have is subject to their debts, but this species...