Chambers v. Perry

• Decision Date: 23 October 1886
• Citation: 1 S.W. 700
• Parties: CHAMBERS <I>v.</I> PERRY.
• Court: Arkansas Supreme Court

1 S.W. 700

CHAMBERS

v. PERRY.

Supreme Court of Arkansas.

October 23, 1886.

Appeal from circuit court, Conway county. In chancery.

Ratcliffe & Fletcher, for appellant. Sol. F. Clark & Son, for appellee.

SMITH, J.

The plaintiff alleged that he is a resident of the state, a married man, and the head of a family; that he is the owner of five acres of land in a compact body, upon which he resides with his family; that at the time he established his homestead thereon the land adjoined the town of Morrillton, but was not within its corporate limits; that the county court had afterwards extended the boundaries of the town so as to take in his land, but the land has never been platted, laid off, or subdivided into blocks, lots, streets, and alleys; that one of the defendants had obtained judgment against him on a contract, but the debt was not one of the excepted debts mentioned in the constitution that an execution upon said judgment had been levied on the land, whereupon the plaintiff had filed with the clerk of the court from which the writ issued a sworn schedule of all his property, claiming the entire tract as exempt by law, and had demanded a supersedeas; that the clerk had refused to suspend the sale, except as to one acre around his dwelling; that the sheriff had proceeded to sell the remaining four acres, and the judgment creditor had become the purchaser. The prayer was that the execution of a deed might be enjoined.

A demurrer to the bill having been overruled, the purchaser at the sale answered that, after the clerk refused to grant a supersedeas in the form first requested, the plaintiff had selected one acre, and, having previously caused its metes and bounds to be established by survey, had put in his claim for said one acre, which was conceded; that the plaintiff had taken no further steps to make good his claim to a larger exemption, but had attended the sale, and interposed no objection; that he had since refused to pay taxes on the land that was sold, had never exercised any acts of ownership, nor set up any claim, until the exhibition of his bill, which was after the period of redemption had expired,—all of which, it was insisted, constituted an implied waiver and abandonment of his previous claim. To this answer a demurrer was sustained, and, the defendants resting, the injunction was perpetuated.

The constitution recognizes two classes of homesteads: the rural homestead, not to exceed 160 acres, for dwellers in the country; the urban homestead, not to exceed 1 acre, for dwellers in cities, towns, and villages. If a homestead is established on the confines of a town, does the subsequent extension over it of the corporate limits curtail its extent? To this question an affirmative answer has been given in Wisconsin and Kansas; while the contrary view prevails in Texas, Iowa, and Michigan. Bull v. Conroe, 13 Wis. 233; Parker v. King, 16 Wis. 223; Sarahas v. Fenlon, 5 Kan. 592; Taylor v. Boulware, 17 Tex. 74; Bassett v. Messner, 30 Tex. 604; Nolan v. Reed, 38 Tex. 425; Finley v....