Stuckey v. Horn

• Decision Date: 28 January 1918
• Docket Number: 118
• Citation: 200 S.W. 1025,132 Ark. 357
• Parties: STUCKEY v. HORN
• Court: Arkansas Supreme Court

200 S.W. 1025

132 Ark. 357

STUCKEY v. HORN

No. 118

Supreme Court of Arkansas

January 28, 1918

Appeal from Saline Chancery Court; J. P. Henderson, Chancellor affirmed.

Decree affirmed.

Ben F Reinberger, for appellant.

The leases are void, and should be set aside. The homestead was urban in a town or village, and consisted of one acre. The balance of the land should be partitioned among the heirs. Kirby's Digest, §§ 3791, 3899, 3900; 20 Ark 56; 71 Ill. 568; 21 Id. 48; 113 Wis. 399; 86 N.W 677; 32 Tex. Civ. App. 18; 119 U.S. 680; 151 Ala. 561.

W. R. Donham, for appellees.

The whole tract was a rural homestead, and could not be partitioned. Const., art. 9, § 6; Kirby's Digest, § 4309; 92 Ark. 260; 31 Id. 145; 47 Id. 504; 47 Id. 445; 49 Id. 75; 50 Id. 329; 52 Id. 213; 56 Id. 534; 61 Id. 26.

The leases were legal. 61 Ark. 26; 82 Id. 514; 125 Id. 291; 123 Id. 189.

The widow and children were entitled to the whole tract as a homestead, and could rent or lease it. 53 Ark. 400; 95 Id. 246; 93 Id. 353.

OPINION

SMITH, J.

One Chris Stuckey died intestate on December 26, 1909, and left surviving him his widow and seven minor children. William Stuckey was the oldest child and he reached his majority on June 29, 1916. Thereafter William Stuckey brought suit for the partition of certain lands described in his complaint. He alleged therein that the widow, for herself and as guardian for the minor children, had executed leases of the land described to the Bauxite Mercantile Company, a copartnership, and to the American Bauxite Company. That the lease to the American Bauxite Company was a mineral lease under which that company, if it desired to mine the bauxite, might do so by paying a stipulated royalty, but otherwise should pay an annual rental of $ 50. It was further alleged that the land was wild and unimproved and that the leases were not for improvements but that said leases were made with the guardian for the purpose of creating an exclusion of business near and adjacent to the bauxite mines.

The lessees were made parties, and there was a prayer that these leases be canceled and the land partitioned.

It was alleged in the answer, and the court found the facts so to be, that the land constituted a homestead and that the leases were valid and that the property was not subject to partition.

The plaintiff admitted the existence of a homestead right in the land in question; but the nature and extent of this homestead are the controlling questions in the case. The plaintiff alleged that the homestead was an urban one, and should be limited to one acre, but that, if it were held to be a rural homestead, the entire tract should not be included for the reason that ten or fifteen acres of the land were not contiguous to the remainder and had not been claimed or considered by plaintiff's father as a homestead in his lifetime.

The tract of land contains about eighty acres, and the testimony shows that the Bauxite & Northern railroad crosses the land and segregates a wedge-shaped piece of the land, containing about ten or fifteen acres, from the remainder, and it is said that the segregated piece is not a part of the homestead. A right-of-way one hundred feet was secured by condemnation proceeding in 1907 and in the judgment it was provided that the right-of-way "be vested in the Bauxite & Northern Railway Company, its successors and assigns, as a right-of-way, to be held and enjoyed by it, its successors and assigns, so long as it is held by it, or them, or either of them, as and for a right-of-way."

The homestead right is a derivative one, and the widow and the minor children have the homestead which the husband and ancestor could have claimed. And, if it be true that the eighty-acre tract of land constituted the homestead of Chris Stuckey before the condemnation proceedings, the character of the portion not taken by that proceeding remained unchanged thereafter. The segments thereof were contiguous within the requirement of the law that the land claimed as a homestead be contiguous, and this is unquestionably true under the facts of this record, for an easement only was condemned by the railway company, and the land owner was left with the fee title to the entire body of land.

In the case of McCrosky v. Walker, 55 Ark. 303, 18 S.W. 169, it was held that the homestead can not consist of two noncontiguous tracts of land; but, in the case of Clements v. Crawford County Bank, 64 Ark. 7, 40 S.W. 132, it was held that a homestead could be claimed in two parcels of land which corner with each other. It was said in that case, and has several times been repeated, that the homestead law should be liberally construed to effect its benign purpose, and any such construction would preclude the holding that the lands here involved are not contiguous. In 13 R. C. L., in the article on Homestead, at section 41 thereof, it is said:

"A homestead right to the whole of a tract of agricultural land is not destroyed by a grant of a right-of-way through it to a railroad company, a part of which is an absolute grant, and partly the creation of an easement; nor does such conveyance operate to so divide the tract as to make the land only on one side of...