Vesper v. Woolsey, 5-2089

• Decision Date: 07 March 1960
• Docket Number: No. 5-2089,5-2089
• Citation: 231 Ark. 782,332 S.W.2d 602
• Parties: Jack VESPER et al., Appellants, v. Harold WOOLSEY et al., Appellees.
• Court: Arkansas Supreme Court

Page 602

332 S.W.2d 602

231 Ark. 782

Jack VESPER et al., Appellants, v. Harold WOOLSEY et al., Appellees.

No. 5-2089.

Supreme Court of Arkansas.

March 7, 1960.

Jack Yates, Ozark, Douglas O. Smith, Jr., Warner, Warner & Ragon, Fort Smith, for appellants.

Jeta Taylor, Ozark, Shaw, Jones & Shaw, Fort Smith, for appellee.

HARRIS, Chief Justice.

This is an appeal from a decree of the Franklin Chancery Court which found that appellants and appellees hold certain lands in Franklin County as tenants in common. The court, in its decree, found that appellees, Harold Woolsey and Elmer Childers, each own an undivided one-fourth interest, and appellants, Jack Vesper and Beatrice Vesper, own an undivided one-half interest as tenants by the entirety. The court found that the lands were not subject to division in kind without material prejudice to the rights of the parties (this fact was stipulated), and further held that appellants were entitled to reimbursement for certain expenditures made for improvements in the amount of $627.38. The property was ordered sold, and the net proceeds (after cost of action and sale, and reimbursement) ordered divided according to the respective interests of the parties, heretofore set out. From such decree, appellants bring this appeal.

The record reflects that Ernest Locke purchased the property in question on October 27, 1917, and he and his wife, Pearl, lived on the premises until Mr. Locke's death in April, 1925. He died without issue, leaving as his heirs two brothers, Cecil and Tom Locke, and one sister, Susie Locke Childers. Sometime after the death of her husband, Pearl Locke moved from the premises and lived with her parents for two or three years, renting the property during this period. In 1929, Pearl Locke married R. E. Protheroe. The evidence at this point is slightly in conflict relative to where Pearl and Protheroe lived for the first few months following their marriage. However, it is established that within three to six months, they were living on the property in question, and continued to live there for the balance of their lives. In 1934, the lands were forfeited for nonpayment of taxes, and the Protheroes obtained a tax deed from the State in 1938. In 1939, these lands again forfeited for nonpayment of taxes, and a redemption deed was issued by the State to R. E. Protheroe and Pearl Protheroe. During the period of their occupancy, the Protheroes executed a right-of-way to the Arkansas Western Gas Company, giving the latter the right-of-way to lay a pipe line and to construct telegraph and telephone lines over the property, and executed three different oil and gas leases (two to the same company and one to Alfred McLane). These leases ran for a period of five and ten years, and all contained a clause to the effect that 'if said lessor owns a less interest in the above described land than the entire undivided fee simple mineral estate therein, then the royalties and rentals herein provided shall be paid the lessor only in proportion which lessor's fee simple mineral interest therein bears to the whole and undivided mineral estate in the lands.'

In November, 1954, Pearl Protheroe died without issue, leaving as her heirs a sister, Maude Benson, and the children of two deceased brothers. Protheroe continued to live on the premises, and executed two more oil and gas leases to the gas company, similar to the ones theretofore executed. In April, 1958, Protheroe died. Under the terms of his will, the property was devised to appellants. Taxes on the lands, after the death of Locke, were paid by Pearl until the tax deed was obtained in 1938, following which, they were paid in the name of R. E. Protheroe. Following Pearl's death, Protheroe continued to pay the taxes until his death. In May, 1958, Cecil and Tom Locke ¹ and Susie Locke Childers (brothers and sister of Ernest Locke), conveyed, by quit-claim deed, their interest in the property to appellees. In October, 1958, appellees instituted suit praying partition of the lands. Appellants, in their pleadings, denied that appellees held any interest, and contended that they (the Vespers) were the sole owners of the property in question. ²

For reversal of the court's decree, appellants assert that 'Appellees' claim is barred by both the two year and seven year statute of limitations (Ark.Stats.1947, § 37-101 and Ark.Stats.1947, § 34-1419). Appellees' claim is barred by the doctrine of laches.' We proceed to a discussion of these contentions.

Relative to the first point, appellants argue that the proof reflects that the claim of Pearl and R. E. Protheroe was adverse to the claim of appellees and their assignors for more than the statutory seven year period. In so contending, appellants rely upon the tax deed, tax payments, right-of-way grant, and the oil and gas leases executed by the Protheroes, asserting that these acts were evidence of the intention to exclude the co-tenants. It is further argued that the claim of appellees is barred by the two year tax statute of limitations.

Upon the death of Ernest Locke, Pearl Locke became endowed with an undivided one-half interest in the estate, the heirs of Locke becoming the owners of the other undivided one-half interest, the latter interest, however, subject to the homestead right of Pearl Locke. Pearl, therefore, in addition to holding as tenant in common, also held the privilege of possession because of her homestead right in the property. It is asserted that Pearl abandoned the property as a homestead, and that this interest passed out of the picture, but we do not agree. The record reflects that she stayed away from the property two or three years, living with her parents, but there is no evidence that she intended, in moving away, to abandon the Locke property as her homestead. Following her marriage to Protheroe, she returned to the premises within a few months. Of course, intention to abandon is an issue of fact, and in such a situation, evidence is rarely clear; nor, in the case before us, does the evidence clearly reveal Pearl's intention. However, the legal presumption is that the homestead right continues until it is clearly shown that it has been abandoned. In City National Bank v. Johnson, 1936, 192 Ark. 945, 96 S.W.2d 482, 484, the appellee was absent from her homestead for four years, during which time she lived in Oklahoma. This Court held that the homestead was not abandoned, and stated:

'All presumptions are in favor of the preservation and retention of the homestead. When property has been impressed with the homestead character, it will be presumed to continue so until its use as such has been shown to have terminated. 29 C.J. 961.

'As we have said, the exemption laws are to be construed liberally. The Constitution provides for the homestead, and, when once established, the presumption is that it continues until it is shown by the evidence that it has been abandoned. The question of homestead and residence, being a question of intention, must be determined by the facts in each case, and the chancellor's finding of fact will not be disturbed unless it appears to be against the preponderance of the evidence.'

See also Harris v. Ray, 1913, 107 Ark. 281, 154 S.W. 499. The widow is permitted to rent the homestead, as was done in this instance by Mrs. Protheroe. Garibaldi v. Jones, 48 Ark. 230, 2 S.W. 844. Coleman v. Gardner, Ark., 330 S.W.2d 954. There is no requirement of continuous occupation of a homestead to continue it as such. Butler v. Butler, 176 Ark. 126, 2 S.W.2d 63. Furthermore, the homestead right acquired from Locke was not forfeited by her remarriage to Protheroe. Stone v. Stone, 185 Ark. 390, 47 S.W.2d 50.

Nor do we agree that appellants' claim is...