Robson v. Hough

• Decision Date: 26 November 1892
• Citation: 20 S.W. 523,56 Ark. 621
• Parties: ROBSON v. HOUGH
• Court: Arkansas Supreme Court

20 S.W. 523

56 Ark. 621

ROBSON v. HOUGH

Supreme Court of Arkansas

November 26, 1892

APPEAL from Phillips Circuit Court, GRANT GREEN, JR. Judge.

Robson Block & Co. obtained judgment in 1888 against N. A. Hough and in 1891 procured an execution to be levied upon his undivided interest, as one of the four heirs of his mother, in certain lands which had descended from her. He filed a schedule claiming that, being the head of a family, the land constituted his homestead. The court found that the land was exempt, and awarded a supersedeas to stay the execution. The sufficiency of the evidence to sustain the finding is the only question raised on the appeal.

Hough testified as follows:

"I am a married man and head of a family, and resident of the State of Arkansas and county of Phillips, and was married and resided as aforesaid at the time of the rendition of the judgment herein. My home is on the land in controversy, and was at the time the judgment was rendered, and is now and has been ever since that time. My mother died Feb. 13, 1890, and I inherited the land levied on from her. During the early part of the year 1890, I had rented a portion of the place from my mother. There was a mortgage on the place due Francis Smith, Caldwell & Co., given by my mother, and after her death, the heirs, who were all of age, agreed that the proceeds of the place should go to paying off the mortgage and I undertook to carry out the agreement and pay the same amount that I had agreed to pay my mother before her death. I paid to my brother, L. Hough, $ 130.00 at one time, which amount was sent by him to Smith, Caldwell & Co. I afterwards paid $ 75.00. The land in controversy was all the land my mother owned at her death. My home was on the land in controversy when the judgment was rendered, and it was my home when the execution was issued and levied, and my home is there now. The land is worked by tenants. Some time in the early part of 1890 I moved my family temporarily to Poplar Grove, which is about two miles from the land, in order that I might be more convenient to a saw mill, at which I expected to and did get work. I rented the place for $ 300 from my mother for the year 1890, and was living on it at the time of her death." No other testimony was introduced.

Affirmed.

Palmer & Nicholls for appellants.

1. Appellee could not be a tenant and own the land at the same time. No step had even been taken to have partition of the land, and his share set apart to him. At the time of the death of his mother, he was a tenant, and on her death the lien of the judgment attached, and was prior to the subsequent claim of homestead. 43 Ark. 107.

2. Appellee, being a tenant in common, could not claim as a homestead his undivided interest in the lands. 27 Ark 648.

3. The character of a homestead must have been impressed upon the land prior to the attaching of the lien of the judgment. 33 Ark. 399; 31 id. 145; 41 id. 94; 29 id. 280;46 id. 43; 51 id. 84; 42 id. 175.

Quarles & Moore for appellee.

1. The law does not require that the appellee shall before trial take steps to have partition made and his interest set apart to him. 27 Ark. 648; Acts 1887, page 90; 39 Ark. 301; 35 id. 49; 41 id. 94; 54 id. 13. A tenancy in common is sufficient to support a claim for homestead. 41 Ark. 95; 54 id. 13.

2. Temporary absence does not defeat a homestead claim. 41 Ark. 309; 37 id. 283; 52 id. 91.

OPINION

COCKRILL, C. J.

An estate in common with others is sufficient to support a homestead exemption, without exclusive possession by the tenant who claims the privilege. Ward v. Mayfield, 41 Ark. 94; Thompson v. King, 54 Ark. 9.

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