Stewart v. Pritchard
| Decision Date | 20 November 1911 |
| Citation | 141 S.W. 505,101 Ark. 101 |
| Parties | STEWART v. PRITCHARD |
| Court | Arkansas Supreme Court |
Appeal from Miller Chancery Court; James D. Shaver, Chancellor affirmed.
Decree affirmed.
L. A Byrne, for appellants.
A wife can not be deprived of her homestead except in the way pointed out by the statute. Kirby's Digest, § 3901.
The statutes declaring and vesting homestead rights are remedial and should be liberally construed. 25 Ark. 101; 57 Ark. 242; 60 Ark. 269; 62 Ark. 431; 64 Ark. 492; 71 Ark. 283. The rights of a homestead having once attached, the homestead character continues until it is alienated or abandoned; and the abandonment must be complete before the law will withdraw its protection. 22 Ark. 400; 37 Ark. 283; 41 Ark. 309; 48 Ark. 539; 55 Ark. 55; 73 Ark. 174; 66 Ark. 382; 94 Ark. 107.
W. H Arnold, for appellee.
The burden of proof is on the one who claims a homestead to prove that he is entitled to the exemption. 76 Ark. 575. In this case before the claim of homestead can prevail it must be shown that the absence of Stewart and his wife was merely temporary, and not with the intention of changing their place of residence, and that they should have a fixed intention to preserve it. 73 Ark. 174; 74 Ark. 88; 78 Ark. 479; 57 Ark. 179; 68 Ark. 76.
OPINION
This was an equitable action instituted by J. T. Pritchard, the plaintiff below, to obtain the specific performance of a verbal contract of sale of land made by defendant to him. The plaintiff alleged that in February, 1910, the defendant sold the land to him by verbal contract for $ 500. In pursuance of said contract, he was placed in possession of the land, and made valuable and permanent improvements thereon. He also alleged that the consideration was to be paid with a note and mortgage for $ 500, which was owned by him, and that he turned same over to defendant's agent in pursuance of their agreement to that effect.
The defendant resisted the action upon two grounds: (1) He alleged that the consideration was to be paid in cash, which was not done; (2) and that the land was his homestead, and that his wife had not joined in the execution of a conveyance thereof, or in a contract of the sale therefor. Considerable testimony was taken relative to these two issues, and upon final hearing of the cause the chancellor made findings in favor of the plaintiff, and entered a decree directing specific performance of the contract for the sale of the land. Upon this appeal, the only ground urged by the defendant why the decree should be reversed is that the land was his homestead, and the alleged sale thereof was void because his wife had not joined in the execution of such contract or of the conveyance for the land. The sole question to be determined, then, is whether or not the land was the homestead of the defendant at the time he sold same to plaintiff.
Defendant bought the land about five or six years prior to the time he entered into the verbal contract for its sale to plaintiff, and moved thereon with his family, and impressed same as his homestead. He remained in possession of the land until January, 1908, when he moved off the land and has never returned to it. It is claimed by the plaintiff that he abandoned the land as a homestead at that time, and that it was not his homestead when the defendant sold same to him in February, 1910.
The abandonment of a homestead is almost, if not entirely, a question of intent. This intent must be determined from the facts and circumstances attending each case. The mere removal of the owner with his family from the homestead will not constitute such an abandonment. It is well settled that a temporary absence from the land, where there is a fixed and abiding intent to return to it, will not occasion an abandonment of it as a homestead. It has been frequently held that if a removal from a homestead is caused by necessity or for business purposes, or for any other reason which requires the temporary absence of the owner, who at the time has and retains a fixed and unqualified intention to preserve it as a homestead and to return to it, this will not result in an abandonment of the land as a homestead. Tumlinson v. Swinney, 22 Ark. 400; Euper v. Alkire, 37 Ark. 283; Brown v. Watson, 41 Ark. 309; Gates v. Steele, 48 Ark. 539, 4 S.W. 53; Robinson v. Swearingen, 55 Ark. 55, 17 S.W. 365; Wilks v. Vaughan, 73 Ark. 174, 83 S.W. 913.
On the other hand, if, at the time of the removal, there is no present or constant and abiding intention to return to it and preserve same as a homestead, then such removal from the land will constitute an abandonment of it as a homestead. The intent of the owner will be gathered from all the facts and circumstances accompanying his removal and absence from the homestead, from his express declarations relative thereto, from the adaptability of the land as a homestead according to the owner's views and desires, as well as from his acts thereafter and the prolongation of his absence therefrom. Newton v. Russian, 74 Ark. 88, 85 S.W. 407; Gibbs v. Adams, 76 Ark. 575, 89 S.W. 1008; Farmers' B. & L. Assn. v. Jones, 68 Ark. 76, 56 S.W. 1062.
While a temporary change of residence will not constitute an abandonment of a homestead, yet an actual removal therefrom will result in such an abandonment unless there is at the time a fixed and definite purpose to return to it and preserve it as a homestead.
The act of March 18, 1887 (Kirby's Digest, 3901), providing that no conveyance or other instrument affecting the homestead shall be of any validity unless the wife shall join in the execution thereof, does not in any manner restrict the right of abandonment by the owner. When he has chosen to exercise the right of abandonment, and actually does abandon the property which formerly was his homestead, it thereby becomes subject to sale or other alienation without his wife's concurrence. Farmers B. & L. Assn. v. Jones, supra.
In construing the above act, this court in the case of Sidway v. Lawson, 58 Ark. 117, 23 S.W. 648, said: Newton v. Russian, supra.
In the case of Hart v. Randolph, 142 Ill. 521, 32 N.E. 517, it was held that where the husband and...
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