Bunch v. Keith
| Decision Date | 29 January 1898 |
| Parties | BUNCH v. KEITH |
| Court | Arkansas Supreme Court |
Appeal from Logan Circuit Court, J. V. BOURLAND, Special Judge.
Judgment reversed and denied.
Rowe & Rowe, for appellant.
The owner of a homestead does not lose it by not claiming before sale under a judgment or decree of court. 55 Ark. 55; 49 Ark 299; Const. of Ark. (1874), art. 9, § 4, and authorities cited; Sand. & H. Dig., § 3714; 55 Ark. 139. Fraudulent conveyance of a homestead does not forfeit it. As to the homestead, there are no creditors. 33 Ark. 762; ib. 454; 44 Ark. 130; 43 Ark. 429; 44 Ark. 180; 52 Ark. 101; ib. 493; 56 Ark. 156; 55 Ark. 253; 57 Ark. 242. The homestead law is to be literally construed.38 Ark. 112.
J Frank Keith, for appellees.
Homestead exemptions must be claimed by a debtor in the suit to set aside a fraudulent conveyance by such debtor, otherwise they are waived. 33 Ark. 454; Const. of Ark. (1868), art. 12 § 3; Const. of Ark. (1874), art. 12, § 3; 28 Ark. 485; 47 Ark. 400; 55 Ark. 139. The act of March 18, 1887, extends only to cases of claiming of homestead as exempt from sales under execution.Hence the rule in Turner v. Vaughan, 33 Ark. 454, applies.
On the 15th of February, 1892, J. A. Keith and M. A. Keith, partners doing business under the firm name and style of J. A. Keith & Co., recovered a judgment against William Bunch for the sum of $ 113.71 and caused an execution to be issued on the same, which was never satisfied, because no property could be found on which to levy. In the same year they recovered another judgment against the same person for the additional sum of $ 16. In July, 1892, they brought suit in the Logan circuit court against Wiliam Bunch, Isaac Bunch, Mary A. McInturf and A. E. McInturf, to cancel two deeds by which William Bunch conveyed certain lands to Isaac Bunch and Mary A. McInturf, alleging that the deeds were executed for the purpose of defrauding the creditors of the grantor. At its August term, 1893, the circuit court set aside and cancelled the deeds, and ordered that the lands thereby conveyed be sold, and the proceeds of the sale be appropriated to the payment of the judgments of the Plaintiffs, amounting to the sum of $ 153.84. On the 24th of November, 1893, before any of the lands were offered for sale, William Bunch filed with the clerk of the circuit court a schedule in which he claimed certain part of the lands as his homestead; and the clerk issued a supersedeas inhibiting the sale of the lands so selected. At the January term of the circuit court, 1894, the plaintiffs moved to quash the supersedeas on two grounds: (1) "because the clerk * * * had no authority to issue a supersedeas to restrain the sale of property decreed by the [circuit] court to be sold; and (2) "because the clerk * * * erred in permitting the defendant, William Bunch, to file a schedule [claiming] exemptions, and in issuing supersedeas." The court found the schedule "to be regular," but set aside the supersedeas, on the ground that William Bunch could not lawfully claim lands as a homestead after they had been condemned to be sold.
Since the last order was made William Bunch and J. A. Keith have died. The former left Mary Bunch, his widow, surviving him; and the latter, Mattie Edwards and J. Frank Keith, his heirs, him surviving. This proceeding has been revived in the name of Mary Bunch as appellant, and in the names of M. A. Keith, as surviving partner of J. A. Keith & Co., and Mattie Edwards and J. Frank Keith and others as appellees.
In denying to William Bunch the right to select a part of the lands condemned to be sold as his homestead, the circuit court doubtless relied upon Turner v Vaughan, 33 Ark. 454, in which it was held, in effect that the homestead right is superior, under the constitution of 1868, to that acquired by the judgment creditor by instituting an action to set aside a conveyance by his debtor of a homestead for fraud, and to sell the same, and apply the proceeds of the sale to the payment of his judgment, but that the debtor waives it unless he asserts it before the decree ordering the land to be sold is rendered. But this decision was based upon the...
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Gray v. Bank of Hartford
...of appellant's failure to plead the homestead right in the former suit, is in direct conflict with the decision of this court in Bunch v. Keith, 64 Ark. 654. See also 55 Ark. 55. mention of these cases is made by the court in Baker v. Hudson, 117 Ark. 492, relied on by appellee, and it cann......
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Hicks v. Norsworthy
...117 Ark. 492, 176 S.W. 337, and Bunch v. Keith, 64 Ark. 654, 44 S.W. 452, moves us to announce that we adhere to the doctrine in Bunch v. Keith, supra, as rule of property. It does not follow that the case of Baker v. Hudson, supra, is overruled. In the latter case the widow and children, i......
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Porch v. Arkansas Milling Company
... ... that purpose before it is sold. Robinson v ... Swearingen, 55 Ark. 55, 17 S.W. 365; Bunch ... v. Keith, 64 Ark. 654, 44 S.W. 452. This being the ... law, the debtor partner is certainly entitled to have so much ... of his interest, when ... ...
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Hicks v. Norsworthy
...together with the suggestion that there is a conflict in this particular between the case of Baker v. Hudson, 117 Ark. 492 , and Bunch v. Keith, 64 Ark. 654 , moves us to announce that we adhere to the doctrine in Bunch v. Keith, supra, as a rule of property. It does not follow that the cas......