Gill v. Gill

• Decision Date: 26 October 1901
• Citation: 65 S.W. 112,69 Ark. 596
• Parties: GILL v. GILL
• Court: Arkansas Supreme Court

65 S.W. 112

69 Ark. 596

GILL v. GILL

Supreme Court of Arkansas

October 26, 1901

Appeal from Pulaski Chancery Court THOMAS B. MARTIN, Chancellor.

Affirmed.

Hill & Auten, for appellant.

There was never such an occupancy as impresses the homestead character on property. Mere intention to occupy is not sufficient. 31 Ark. 466; 22 Ark. 400. The occupancy must be by the husband, in his lifetime, and as a residence. Const Ark. § 5, art. 9; 33 Ark. 399.

James Coates, for appellees.

The fact that the homestead claimant is only a co-tenant with another does not deprive him of his right to claim his homestead. Freeman, Cot. & Part. § 54; 35 Ark. 50; 27 Ark. 659; 41 Ark. 95. While mere intention to occupy a homestead is not alone equivalent to possession, yet it, in connection with other circumstances, may constitute such a constructive occupancy as to form a sufficient basis for the claim of homestead. 9 Kan. 475; id. 425; 35 Ia. 410; 40 N.H 282. Cf. Freeman, Cot. & Part. § 54; 42 Ark. 541; 59 Ark. 213.

OPINION

WOOD, J.

R. G Gill, a resident of this state, and a married man, purchased a half lot in the city of Little Rock, valued at $ 1,050 for a homestead. Gill and his wife packed up some of their household goods, preparatory to moving. He and she went over to the house, where they expected to live, and fixed a lock on the door. He was taken sick, but he directed his wife to hire some one to assist her in moving. She did so, and cleaned up the new house. Then, with the hired help, whom Gill paid for the work, she packed up some household goods and kitchen furniture, such as bed, bedstead, carpets, cooking stove, cooking utensils, etc., and moved same into the new house. Mefore the moving was completed, Gill, who had taken to his sick bed at his mother's died. After his death his wife continued the moving into the new house, and she and the minor children were occupying the same as the homestead at the time of the institution of this suit. Gill had no other lands.

The only question on this appeal is: Was the land in controversy "owned and occupied by Gill as a residence," in the sense contemplated by art. 9, § 5, Const., so as to entitle his wife and minor children to claim same as a homestead? "The chief reason," says Mr. Thompson, "why actual occupancy is insisted upon as a condition to the exemption of a homestead is that it may serve to notify the world that it is the place claimed by the owner as exempt." Thompson, Homest. § 245.

This court has held that occupancy is necessary; that a mere intention to occupy is not sufficient. The principle has been settled and announced in cases where the facts showed nothing more than a mere intention to occupy as a homestead, unaccompanied by any acts of actual occupancy. Tumlinson v. Swinney, 22 Ark. 400; Johnston v. Turner, 29 Ark. 280; Williams v. Dorris, 31 Ark. 466; Hoback v. Hoback, 33 Ark. 399; Patrick v. Baxter, 42 Ark. 175. But here the bona fide intention to occupy is manifested by some of the usual constituents and concomitants of occupancy, such as repairing and cleaning the house, and moving in household goods and kitchen furniture.

In Iowa there is an unbroken line of decisions holding that occupancy, the use of the house by the family as a homestead is an essential requirement to impress the property with the character of a homestead; that the "mere intention to occupy it, though subsequently carried out, is not sufficient." Charless v. Lamberson, 1 Iowa 435; Christy v. Dyer, 14 Iowa 438; Elston v. Robinson, 23 Iowa 208; Givans v. Dewey, 47 Iowa 414; First National Bank v. Hollinsworth, 78 Iowa 575, 43 N.W. 536. This court, in announcing the same doctrine, quoted the identical language of some of the Iowa cases. Williams v. Dorris, supra, 31 Ark. 466. In the case of Neal v. Coe, 35 Iowa 407, the defendants used the house on the place claimed as a homestead for holding a...