Reynolds v. Tenant
| Decision Date | 17 November 1888 |
| Parties | REYNOLDS v. TENANT |
| Court | Arkansas Supreme Court |
APPEAL from Izard Circuit Court, R. H. POWELL, Judge.
Judgment affirmed.
Z. M and D. L. Horton, for appellant.
The sale was subject to confirmation and should have been rejected for any irregularity affecting the substantial rights of the parties. Mansfield's Digest, sec. 350; 29 Ark. 307; Rorer on Jud. Sales, pp. 28, 110, 121, 590-1-7, and note 1.
The pleadings admit the land to be defendant's homestead. It was exempt, Art. 9, sec. 3, Const. even after the issue of the order of sale. 48 Ark. 224. His schedule complied with sec. 3006, Mansfield's Digest. It states that it is example and even if it does fail to show when his occupancy began, it clearly implies that it was his homestead at the time of the levy. Homestead laws are liberally construed. Thompson, II. and Ex., secs. 4, 7, 731; 38 Ark. 113; 48 Id 493.
The clerk is a ministerial officer, and has no discretion when the debtor complies with the law.
2. The sale was irregullar. Mansfield's Digest, secs., 3049 3052-3. The sheriff neglected his duty in selling in a body.
John H. and S.W. Woods and Robert Neill, for appellees.
A party claiming exemption must, by affirmative statement, bring himself within the law. 34 Ark. 112; 43 Id., 20.
The necessary qualifications of the homestead claimant must exist at the date of the levy upon the land. The homestead character cannot be impressed afterwards, so as to displace the lien of the judgment which relates back to the levy. 43 Ark. 178; 46 Id., 49; 48 Id., 226.
The affidavit does not disclose the fact that appellant occupied the land at the date of the levy. He simply states that he now owns, etc. This does not bring him within the law. 33 Ark. 454; 46 Id., 43-47.
2. The statute directing lands to be sold in forty acre tracts or less, etc., is merely directory, and may be waived. 34 Ark. 409; 38 Id., 579. The land sold for its full value and no injury was done appellant; he was present at the sale and did not object to the manner of sale, thereby waiving his right under the statute.
Appellee instituted an action against appellant, and sued out an attachment, which was levied on his personal property and land. They recovered judgment; the attachment was sustained; and the property levied on was ordered to be sold. A writ of Ven. Ex. was issued, commanding the sheriff to sell. Upon its issuance, appellant, after giving the requisite notice, filed his schedule with the clerk of the court, and claimed the land as his homestead. The schedule was verified by an affidavit to the effect that the schedule was a correct list of all his property, except the wearing apparel of himself and family; that he is a resident of the state, a married man and the head of a family; that the land claimed as his homestead did not exceed one hundred and sixty acres, and was not worth exceeding $ 2,500; that he occupied it on the 10th of April, 1886, the date of his affidavit, as his homestead; and that he claimed it as his homestead and to be exempt from seizure or sale under attachment, and demanded a supersedeas. The clerk refused to issue the supersedeas, and the sheriff sold the land, a tract consisting of one hundred and fifty-five acres, in a body. Appellant was present at the sale and made no objection to the manner in which it was sold. The sheriff made a report of his proceedings to the court; and appellant moved the court to set aside the sale of the land, because it was his homestead and he had filed a schedule before the sale, as before stated. The court overruled the motion and confirmed the sale.
The attachment was levied on the 16th of February, 1886; the judgment of the court sustaining the attachment and directing the sale to be made was rendered on the 13th of March, 1886 and the schedule was filed on the 10th of April, following. Appellant failed to show, in the affidavit annexed to his...
To continue reading
Request your trial
-
Gray v. Bank of Hartford
...aside of the land as homestead to the appellant by the bankruptcy court is res judicata and conclusive against the bank in this case. 51 Ark. 84. As against creditors Gray could impress the land with the homestead character after he returned from Texas; but such impressment would not annul ......
-
Weir v. United States
...to Arkansas statutory provisions for selling realty in blocks of 20 to 40 acres, the Supreme Court of Arkansas, in Reynolds v. Tenant, et al., 51 Ark. 84, 9 S.W. 857 (1888), held that this requirement was merely directory and could be waived. In that cited case the Court found a waiver to e......
-
Montgomery v. Black
...H. A. & J. R. Parker, for appellants. The objection that a sale of land was sold en masse can be raised by the defendant only. 34 Ark. 399; 51 Ark. 84; 64 Ark. The same is true with reference to the bond required under section 5877 of Sandels & Hill's Digest. 66 Ark. 1; 62 Ark. 421. If a sa......
-
Wilks v. Vaughan
...Sheldon, Subro. § 140; Pom. Eq. Jur. 1418. The lien held by the bank inures to the benefit of appellees. 2 Brandt, Sur. § 309; 63 Ark. 299; 51 Ark. 84. Wilks did not establish a homestead, and was not entitled to the exemption. 57 Ark. 180; 60 Ark. 262. Fraud in the conveyance of the land w......