King v. Sweatt, Civ. A. No. 504.

• Decision Date: 20 October 1953
• Docket Number: Civ. A. No. 504.
• Citation: 115 F. Supp. 215
• Parties: KING v. SWEATT.
• Court: U.S. District Court — Western District of Arkansas

115 F. Supp. 215

KING v. SWEATT.

Civ. A. No. 504.

United States District Court W. D. Arkansas, Hot Springs Division.

October 20, 1953.

Wootton, Land & Matthews, Hot Springs, Ark., for plaintiff.

R. Julian Glover, Hot Springs, Ark., for defendant.

JOHN E. MILLER, District Judge.

The questions for determination arise out of the schedule of exemptions filed herein by the defendant and the response of plaintiff to said schedule in which plaintiff asks that the schedule of property filed by defendant be denied and that the property claimed as exempt by defendant be subjected to sale under execution for the collection of a judgment in favor of plaintiff and against the defendant.

On June 26, 1952, this Court rendered judgment in favor of the plaintiff against the defendant for a total sum of $4,314.31, with interest thereon at 5% per annum from date of judgment. The judgment has not been paid and an execution has been issued for the collection of the judgment. The United States Marshal has advised the defendant of his intention to levy the execution upon certain real property owned and in the possession of the defendant, and also upon certain personal property alleged to belong to the defendant.

A hearing was had on the schedule submitted by the defendant and on the response of plaintiff thereto, at which time testimony was adduced by both parties. Subsequent to the hearing the parties filed briefs in support of their respective contentions.

The defendant is married, and under the provisions of Article 9, § 2 of the Constitution of the State of Arkansas is entitled to claim as exempt from sale on execution or other process from any court on debt by contract specific articles of personal property to be selected by him, not exceeding in value the sum of $500, in addition to his wearing apparel and that of his family.

Article 9, § 3, supra, provides that the homestead of any resident of Arkansas who is married shall not be subject to the lien of any judgment or to sale under execution or other process except such as may be rendered for certain specified debts.

The judgment upon which the execution has been issued was rendered against defendant for a debt by contract, and the judgment does not come within any of the exceptions set forth in Article 9, § 3, supra.

Article 9, § 4, supra, provides:

"The homestead outside any city, town or village, owned and occupied as a residence, shall consist of not exceeding one hundred and sixty acres of land, with the improvements thereon, to be selected by the owner, provided the same shall not exceed in value the sum of twenty-five hundred dollars, and in no event shall the homestead be reduced to less than eighty acres, without regard to value."

Article 9, § 5, supra, provides:

"The homestead in any city, town or village, owned and occupied as a residence, shall consist of not exceeding one acre of land, with the improvements thereon, to be selected by the owner, provided the same shall not exceed in value the sum of two thousand five hundred dollars, and in no event shall such homestead be reduced to less than one-quarter of an acre of land, without regard to value."

The testimony adduced at the hearing was undisputed and in summary was as follows:

The defendant is the owner of real property abutting on the east side of United States Highway No. 7 and situated approximately one mile south of the corporate limits of the City of Hot Springs, Arkansas. He acquired a portion of the property, described as lots 1 and 2 of Rosalind Addition to the City of Hot Springs, Arkansas, on November 2, 1948, for a consideration of $30,000. There is situated on this parcel the A-B Tourist Court consisting of eight units and in addition thereto the home occupied by defendant and his wife. The office of the tourist court is in the home. There are approximately 20,000 square feet in this parcel.

Subsequently the defendant purchased another parcel of land immediately south and adjacent to lots 1 and 2. That parcel is described by metes and bounds and is a part of the southeast quarter of the southeast quarter of Section 17, Township 3 South, Range 19 West, in Garland County, Arkansas. Located on this parcel is a building abutting on the east side of the highway. This is a two-story frame building and is approximately 36½ feet by 36½ feet square. It is rented to a tenant who pays $90 per month therefor. The total area in this particular parcel of property upon which the building, "Furniture Mart," is located is approximately 12,000 square feet. Thus the property of the defendant contains a total of approximately 32,000 square feet. An acre contains 43,560 square feet, and thus the property owned by defendant is less than one acre in area but is in excess of one-quarter of an acre in area.

The value of the property exceeds the sum of $2,500.

The City of Hot Springs does not exercise any jurisdiction over the property and the defendant is not afforded any police or fire protection by the city government; nor does the city furnish any sewer, water or gas facilities. There are no street lights, paved streets or transportation systems, or any of the other conveniences ordinarily afforded to the inhabitants by cities, towns or villages. The community is without a name, and all roads in and near the community are maintained either by Garland County or by the State of Arkansas. The testimony does not disclose the number of houses that are situated in the immediate area, but photographs were introduced showing that for a distance of approximately one-half mile on either side of the main highway there are tourist courts, filling stations, residences, and buildings used in the operation of what might be termed "country stores." The ownership of most of the property situated on both sides of the highway within the immediate area extends back from the highway various distances, and usually the property situated behind the residences or other buildings is used by the individual owners as a pasture for livestock or for the production of poultry and agricultural products in a limited manner.

The value of the specific articles of personal property claimed by the defendant as exempt from sale on execution is not definitely established, nor is the extent of his ownership in other personal property established with any degree of certainty.

All of the real property claimed by the defendant as exempt and as a homestead is mortgaged, but the existence of mortgage liens on the property would not prevent the sale of the real property on execution, subject of course to all valid existing liens. Therefore, the question that is presented is whether the real property claimed as exempt by defendant is rural or urban property. If it is rural property the schedule as to the real property should be allowed and approved. If it is urban property. the schedule should be disapproved and the property subjected to sale on execution with the right of the defendant to select from the property an area not less than one quarter of an acre, with improvements thereon.

In 26 Am.Jur., Homestead, Section 11, the rule to be applied in the consideration of the respective claims of the parties is stated as follows:

"Constitutional or statutory provisions for homesteads are to be construed liberally, with a view to accomplishing their beneficent object and carrying out the purpose of the legislature. That is to say, the construction should be liberal toward the debtor, but strict toward his creditors or one who has dealt with the property. It is said that the courts employ the most liberal and humane rules of interpretation to insure the unfortunate debtor and his equally unfortunate, but more helpless, family the shelter and influence of home. It is asseverated that all reasonable presumptions will be indulged in favor of the homestead right, and that the right is to be held to apply to all such cases as are within the equity and spirit of the statute which has established it."

Although the law creating the homestead right should be liberally construed in the debtor's favor, it should not be so applied or construed as to make the law an instrument for the accomplishment of fraud or imposition. Construction should not be so liberal as to depart from the plain and obvious meaning of the words used in the Constitution or to confer rights upon persons who have not brought themselves at least within the spirit of the Constitutional provisions.

The plaintiff contends (1) that the real property has...