Brown v. Peters
| Decision Date | 26 April 1890 |
| Citation | 13 S.W. 729,53 Ark. 182 |
| Parties | BROWN v. PETERS |
| Court | Arkansas Supreme Court |
APPEAL from Crawford Circuit Court, JOHN S. LITTLE, Judge.
Judgment reversed.
O. P Brown and L. P. Sandels for appellant.
The right of exemption being purely a gift, a debtor must comply with the statute strictly. The statute is mandatory. Mansf. Dig., sec. 3006; 49 Ark. 116.
The law requires a showing under oath of all the debtor's property. The affidavit in this case alleges only that the land claimed is all his real estate. It is fatally defective. 49 Ark. 116; 47 Ark. 400; 42 Ark. 175; 40 Ark. 352.
The act of March 18, 1887, simply extends the time in which a homestead may be claimed. It does not change the mode of ascertaining and exempting it.
The affidavit must show, 1, that he is a resident; 2, the head of a family; 3, that he resides on the land and claims it as exempt; 4, he must make a schedule of all his property.
The appellant recovered a money judgment against the appellee in the Crawford circuit court on the 12th day of April, 1883; on the 14th day of May, 1888, an execution was issued upon said judgment and levied upon a tract of land. Before sale under the execution the appellee claimed the land as exempt to him as a homestead, and the clerk of the court issued a supersedeas staying the sale.
The appellant presented his application to the circuit court to quash the supersedeas, alleging that "the affidavit was fatally defective;" the application was denied, and the appellant has appealed.
The schedule upon which the supersedeas issued and the accompanying affidavit are as follows:
"I, George Peters, do solemnly swear that the above schedule embraces all my real estate, and that the same is that which I claim as my homestead, and upon which I reside; that it does not exceed one hundred and sixty acres, and does not exceed in value the sum of twenty-five hundred dollars.
GEORGE PETERS.
The defects alleged are, (1) that the schedule does not purport to set out all of the defendant's property, and (2) that the affidavit does not show that the defendant is a resident of the State.
The law regulating the issuance of a supersedeas in such cases provides, that if any party entitled to the benefit of exemptions shall desire to claim them, he shall prepare a schedule, verified by affidavit, of all his property, including moneys, rights, credits and choses in action, specifying the particular property which he claims as exempt, and file the same with the justice or clerk issuing the execution. This provision by its terms is not...
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