Snider v. Martin
| Decision Date | 21 November 1891 |
| Citation | 17 S.W. 712,55 Ark. 139 |
| Parties | SNIDER v. MARTIN |
| Court | Arkansas Supreme Court |
APPEAL from Nevada Circuit Court, CHARLES E. MITCHEL, Judge.
Snider & Holmes sued Nat Martin, and alleged that, on the 26th day of September, 1888, the sheriff of Nevada county, by virtue of an execution issued in their favor against E. E. White offered for sale, according to law, all the interest of said White in certain lots in Prescott; that Martin became the purchaser thereof for the sum of three hundred dollars, and executed his bond or note for such sum; that the note was due and unpaid; wherefore they prayed judgment for the amount due. Martin answered that the land was the homestead of White, the defendant in execution; that White's interest was not subject to sale; and that the note executed by him was without consideration. A jury trial was waived and the cause submitted to the court.
E. E White testified: That he was the defendant in the execution under which the lots in controversy were sold; that they were sold on the 22d day of September, 1888; that, during the entire year of 1888, he was in the employ of the government of the United States as an Indian inspector; that, about July 19, 1888, he sent his family to Eureka Springs, where they remained until April, 1889; that he had left some household plunder in the house, but it was rented to and occupied by a tenant during his absence; that he owned other lands than this sold under execution, but considered this his homestead that no schedule of the lots was filed, nor any claim of homestead rights made, prior to the sale, nor any notice thereof given at the sale.
The court's conclusions of facts were as follows: That the note sued on was executed by defendant for the purchase money for certain lots which were bid off by him at an execution sale made to satisfy a judgment recovered by plaintiffs against one E. E. White; that said lots did not exceed one acre, and with improvements were not worth exceeding one thousand dollars; and that White had been and was claiming and occupying the land as his homestead. The court declared the law to be that the sale of a homestead under execution is void; that the party owning the homestead so sold is not required to give notice that he claims it as such; that such sale does not pass to the purchaser the title of the person owning the homestead; and that a note given therefor is without consideration. From a judgment in favor of the defendant plaintiffs have appealed.
Judgment reversed and cause remanded.
Atkinson, Tompkins & Greeson for appellants.
1. Prior to the passage of the act of 1887 (Acts 1887, p. 90), the debtor was required to assert his claim in the statutory manner before sale, or his homestead was lost. 28 Ark. 285; 40 id., 352; 47 id., 400. This case comes squarely within the proviso of the second section of the act. 53 Ark. 184. White never claimed his homestead, nor resided upon it; therefore he is still required to claim his homestead. He waived his right.
2. The rule caveat emptor applies to execution sales of real estate. 10 Ark. 211; 25 Ala. 625; Freeman on Ex., sec. 301; 70 Am. Dec., 572.
3. Appellee cannot claim the homestead for the execution debtor. That is a personal privilege.
4. Residence depends on the facts of each case. 43 Ark. 547. The act of 1887 provides that if the debtor does not reside on his homestead, he shall select the same before the sale.
C. C. Hamby for appellee.
1. A temporary absence does not work a forfeiture of the homestead. 41 Ark. 309; 19 Wend., 11; 54 Miss. 308; 18 Ark. 236; 43 Ark. 547; 50 id., 266, 283; 74 Me. 239-64.
2. The authorities draw a distinction between a sale void for any irregularity or defect of title, and one where the sale absolutely conveyed nothing. When the officer sells all the interest the party has, the doctrine of caveat emptor applies, but when the officer does not sell such interest, and under the law could not do so, the sale is void, and any note or bond given in pursuance of such sale is void for want of consideration. 6 S. & M., p. 259; 6 How. (Miss.), 230; 4 Sneed, 623; 1 Met. (Ky.), 281; 18 B. Mon. 387; 34 Miss. 304; 44 Miss. 533. If the judgment or sale is void, or from any cause the conveyance does not carry the title, then the bid or promise to pay is without consideration, and cannot be enforced. 7 Ill. 55; 65 Barb., 107; 61 Ala. 472; 56 Tex. 282; 5 Sneed, 488; 24 Ill. 281; 71 N.Y. 345; 51 Ala. 224; 90 N.Y. 243.
Under the constitution of 1868 it was held that the right of a debtor to hold a homestead exempt from sale under execution was a personal privilege which the debtor might waive, and that he would be held to have waived it by failure to claim it, in the manner provided by law, before sale under execution. Norris v. Kidd, 28 Ark. 485. It has been held that the same rule obtained under the constitution of 1874. Chambers v. Perry, 47 Ark. 400, 1 S.W. 700.
The act of March 18, 1887, does not enlarge, or in any manner change the character of the right;...
To continue reading
Request your trial
-
Delfelder v. Teton Land & Investment Co.
...from sale under execution is a personal privilege. 'As against all the world except the debtor and his wife,' as is said in Snider v. Martin, 55 Ark. 139, 17 S.W. 712, "the sale is valid, and it is valid against them, they, or one of them, elect to defeat it. If they neglect or refrain from......
-
Smith v. Butler
...exemptions of property sold under attachment where he has had an opportunity and neglected to claim his exemptions as provided by statute. 55 Ark. 139; 53 Ark. 54. In the case at bar, payee and garnishee were protected against the danger of twice paying the debt. 53 Ark. 524. Negotiable pap......
-
Black v. Stephenson
...118. The right of homestead is a personal privilege, and homestead must be availed of by the claimant as the law prescribes. 70 Ark. 69; 55 Ark. 139; 67 Ark. 232. A resulting trust will attach in the person paying the purchase money if it was not the intention of either that the estate shou......
- Cole v. Meete