Gazola v. Savage

• Decision Date: 08 October 1906
• Citation: 96 S.W. 981,80 Ark. 249
• Parties: GAZOLA v. SAVAGE
• Court: Arkansas Supreme Court

96 S.W. 981

80 Ark. 249

GAZOLA v. SAVAGE

Supreme Court of Arkansas

October 8, 1906

Appeal from Monroe Circuit Court, George M. Chapline, Judge affirmed.

Judgement affirmed.

C. F Greenlee, for appellant.

1. The homestead is limited as to quantity and value, and must be owned and occupied as a residence. Kirby's Digest, § 3900; art. 9, § 5, Const. It appearing by the evidence that the lot contained more than one-fourth of an acre, it was incumbent on appellee to show that it did not exceed $ 2,500 in value.

2. Appellee, as appears by the evidence and her acts, has abandoned her homestead rights in the premises. A homestead necessarily includes the idea of residence. Thomp. H. & Ex § 100; 57 Ark. 181. Mere intention is not sufficient where the land is not in actual occupancy; the intent must be accompanied with such acts of preparation and improvement of the property as to manifest beyond a doubt the intention to reside upon the place as a home. 28 S.W. 52; 15 S.W. 117; 25 S.W. 445; 40 S.W. 1046; 60 Ark. 262.

M. J. Manning, for appellee.

A homestead, once established in good faith, is not forfeited by temporary residence elsewhere. 22 Ark. 400; 41 Ark. 309; 37 Ark. 283; 48 Ark. 539; 55 Ark. 55; 56 Ark. 621.

OPINION

MCCULLOCH, J.

Appellant, John Gazola, recovered a judgment against appellee, Mrs. M. J. Savage, on May 28, 1897, in the circuit court of Monroe County for the sum of $ 605.42, and on August 29, 1904, caused execution to be issued thereon, which was by the sheriff levied upon a lot owned by appellee in the city of Brinkley. Appellee claimed the lot as her homestead, and filed her schedule of exemptions with the clerk of the court, who issued a supersedeas, staying the sale under execution. Appellant presented to the circuit court at the next term his motion to quash the supersedeas, which motion was denied, and he appealed to this court.

Appellee is a married woman, and formerly occupied the property as a homestead. The lot had a building thereon which appellee occupied as a residence and kept a hotel or boarding house therein for about nineteen years. The building was destroyed by fire in the fall of 1900 or spring of 1901, while she so occupied it, and she has not since resided upon the lot, but has resided in another house owned by her son in Brinkley. In the year 1903 she leased the lot for a term of five years to one Kelly, who built three houses thereon for business use. These are inexpensive wooden and iron buildings, and Kelly testified that his contract provided that he could remove the buildings at the end of the term, and that, if appellee desired to build a house upon the lot at any time and would pay him for his improvements, he would surrender possession to her. He also testified that he tried to purchase the lot from appellee, but that she declined to sell, saying that she expected to build there and move back on the property.

Appellee testified that she never abandoned her homestead claim, but intended to return to the property and rebuild her home as soon as she could arrange her business so as to do it, and had reserved the privilege, in her contract with Kelly, of taking the property back at any time she was ready to rebuild. She refused repeated offers to purchase made by various persons, giving at the time as a reason her intention to rebuild a home on the lot.

The trial court made the following finding: "That Mrs. M. J Savage is, and was at the date of the judgment, the head of a family and a citizen of the State of Arkansas, and resident of Monroe County; and, prior to the burning of the property situated on the land described...