Tillar v. Bass

• Decision Date: 14 January 1893
• Citation: 21 S.W. 34,57 Ark. 179
• Parties: TILLAR v. BASS
• Court: Arkansas Supreme Court

21 S.W. 34

57 Ark. 179

TILLAR v. BASS

Supreme Court of Arkansas

January 14, 1893

Appeal from Desha Circuit Court, JOHN M. ELLIOTT, Judge.

Tillar & Stanley recovered judgment against Commodore Bass, and procured an execution to be levied upon certain land belonging to him. Defendant filed a schedule with the clerk of the circuit court, claiming the land exempt as his homestead. The clerk sustained the claim and issued a supersedeas staying the execution. Plaintiffs applied to the circuit court, which sustained defendant's right of homestead. The evidence is stated in the opinion. Plaintiffs have prosecuted this appeal.

Judgment reversed and cause remanded.

C. H Harding and W. S. McCain for appellants.

1. The debtor's right of homestead must antedate the creditor's execution lien. 46 Ark. 43; 51 id. 84; 42 id 175.

2. Appellee had a home on an adjacent tract of land owned by his wife. The burden of showing a change of home to the tract in question is upon him. He has not done so. 43 Ark. 20; 52 id 547.

3. This tract, being detached from his homestead, cannot be claimed as exempt. 55 Ark. 303.

4. His wife had a homestead in her own right. 54 Ark. 9; 46 id. 159. There cannot be two homes. This case is similar to 31 Ark. 466; 42 id. 175.

Pindall & Rogers for appellee.

1. The facts set out are sufficient to constitute the tract the appellee's home.

2. But under the act of 1887 (Acts 1887, page 90), a homestead may be claimed after sale. 55 Ark. 55. It is sufficient, under the act, if the claimant resides upon the land at the time of filing the schedule.

OPINION

BATTLE, J.

An intention of the owner to occupy lands as a homestead is not sufficient to impress it with that character. The constitution of 1874, in declaring of what a homestead shall consist, says: "The homestead outside of any city, town or village, owned and occupied as a residence, shall consist of not exceeding one hundred and sixty acres of land, with the improvements thereon, to be selected by the owner," etc. Again it says: "The homestead in any city, town or village owned and occupied as a residence, shall consist of not dummy exceeding one acre of land, with the improvements thereon, to be selected by the owner," etc. From this language it is obvious that actual occupancy as a residence is necessary to give a lot or tract of land the character of a homestead within the meaning of the constitution of 1874.

In Williams v. Dorris, 31 Ark. 466, Chief Justice English, in defining what a homestead is, said: It "is the place of a home or house--that part of a man's landed property which is about and contiguous to his dwelling house. A homestead necessarily includes the idea of a house for a residence, or mansion house. The dwelling may be a splendid mansion, a cabin, or tent. If there be either, it is under the protection of the law, but there must be a home residence before it, and the land on which it is situated, can be claimed as a homestead." Tumlinson v. Swinney, 22 Ark. 400; McKenzie v. Murphy, 24 Ark. 155; McCrosky v. Walker, 55 Ark. 303, 18 S.W. 169.

In Williams v. Dorris, supra, the court held that the land in controversy in that action was not the homestead of Williams on the first of February, 1873. The facts in that case were as follows: Williams was a married man, and the head of a family, and did not, at that time, reside on or occupy any of the land in controversy in that action with his family. He had expressed an intention to build a dwelling house for himself on it, and to claim it as a homestead. But at the time mentioned he had no sort of a family dwelling or house on it, "and was there in the day time, attending to mercantile business, but resided with his family at the house of Major Hall, on another place, about two miles away. In December, 1872, he purchased lumber at Pine Bluff, and contracted with Madding to build him a dwelling house at New Gascony," where the land is; "the lumber was taken down the Arkansas river on a flat boat built for that purpose, and placed upon the land * * in March, 1873. The dwelling house was completed in August following," and Williams moved into it, with his family, and occupied it as a residence. Because he did not actually occupy it as his residence on the first of February, 1873, the court held that it was not his homestead at that time; and that the intention to build on it and occupy it as a homestead, conceived before that time and carried into execution subsequently, was not sufficient to give it the character of a homestead on that day.

In Patrick v. Baxter, 42 Ark. 175, an execution was levied on the land in controversy in that action. At the time of the levy Patrick "was building a house on it, with the view of making it a home for himself and his aged mother, whom he was supporting, his father being dead." He was not living on it, and did not complete the house and move into it until after the execution was levied on the land. This court held that "when the execution was levied he had not impressed upon the land the character of a homestead;" that "it was not his home or dwelling place;" and that it was subject to sale under the execution.

The execution was levied on the land in controversy in this cause on the 21st of March, 1891. About seventeen years before that time, appellee acquired title to the same. About the same time his wife became the owner in her own right of a tract of land about a mile or three-quarters of a mile from it. He made improvements upon her land, and moved and resided upon it, with his family, about five or six years, when he moved to Garland county, on account of the bad health of his wife and resided there, with his family, about five years. While in Garland county, he bought the property upon...