White Sewing-Mach. Co. v. Wooster

• Decision Date: 22 April 1899
• Citation: 50 S.W. 1000
• Parties: WHITE SEWING-MACH. CO. v. WOOSTER et al.
• Court: Arkansas Supreme Court

50 S.W. 1000

WHITE SEWING-MACH. CO. v. WOOSTER et al.

Supreme Court of Arkansas.

April 22, 1899.

Appeal from Faulkner chancery court; Thos. B. Martin, Chancellor.

Suit by J. P. Wooster, Jr., and others against the White Sewing-Machine Company. There was a decree for plaintiffs, and defendant appeals. Affirmed.

J. G. B. Simms, for appellant. Sam Frauenthal, for appellees.

BUNN, C. J.

This is a bill in the Faulkner chancery court, by the appellees against the appellant company, to remove cloud upon the plaintiffs' title to lots Nos. 11, 12, 23, and 24 in block 26 of Robinson's plan of the town of Conway, Faulkner county, Ark. Decree for plaintiffs, and the defendant appealed to this court.

Narcissa Wooster departed this life on the 25th of October, 1896, leaving, surviving her, her husband, J. P. Wooster, Sr., and her and his children, J. P. Wooster, Jr., aged 27 or 28 years; Mrs. Mary Ellen Gellenwater, aged 25 years; and Mrs. Annie L. Tate, aged 22 years, — and seised of the lots above named. For many years she had been afflicted with rheumatism, and had, in company with her husband, made three several visits to Hot Springs, in this state, seeking relief from the waters of that place, making a considerable stay on each visit, the first of which was before they settled upon the lots in controversy, and occupied them and the buildings thereon as their homestead, which was in 1888. On the last visit, it became apparent that their stay would be indefinitely prolonged, and they leased their homestead to one Hardin for one year, beginning the 7th of August, 1896, and expiring the 7th of August, 1897. From their entrance upon the premises, the wife and husband continued to claim the same as their homestead, neither of them having any other homestead, and they never were absent from the same, except as stated, and therefore never abandoned the same, nor did any act amounting to an abandonment. The wife, the owner of the fee in the homestead, died in October, 1896, and their said children were all then of age, and said lease had not then expired; and the husband and father, then the tenant by the curtesy, and otherwise entitled to the possession, was thus prevented from resuming the possession, and was, in fact, still further delayed in taking possession by the extreme illness of the lessee, Hardin, after the expiration of the lease. Soon after the death of Mrs. Wooster, the defendant company, having previously obtained a judgment against J. P. Wooster, Sr., caused execution to be issued and levied upon his life estate in the land in controversy, and on the 2d of January, 1897, the same was sold thereunder to the defendant company, and the sheriff gave to it his certificate of sale and purchase, and this certificate constitutes the alleged cloud upon plaintiffs' title. The plaintiffs are the owners of the fee, by inheritance from their mother, the said Narcissa, and of the possessory right of their father, by purchase from him by two of them, evidenced by deed dated December, 1896, about two months after the death of the mother, but after the levy of the execution of defendant, as stated above. The consideration of the deed from the father to the two children, as testified by him, was $400 which he owed them, the amount stated in the deed, and the further consideration that he was to be permitted to share the use and occupation of the home with them. The father and husband sought, in every proper way, to assert his homestead claim against the...