Wooten v. Farmers' & Merchants' Bank

• Decision Date: 02 April 1923
• Docket Number: 281
• Citation: 249 S.W. 569,158 Ark. 179
• Parties: WOOTEN v. FARMERS' & MERCHANTS' BANK
• Court: Arkansas Supreme Court

249 S.W. 569

158 Ark. 179

WOOTEN v. FARMERS' & MERCHANTS' BANK

No. 281

Supreme Court of Arkansas

April 2, 1923

Appeal from Poinsett Chancery Court; Archer Wheatley, Chancellor affirmed.

Decree affirmed.

Aaron McMullen and Gautney & Dudley, for appellant.

The court erred in finding appellant had abandoned his homestead the Reynolds tract of land, and the deed of trust conveying same, a valid instrument. Said deed was void, the appellant wife of the grantor, not having joined in its execution and acknowledged same as the law requires. Secs. 5542, 1521, 1524, Crawford & Moses' Digest. Mrs. Wooten testified she did not sign the deed of trust nor acknowledge same. Her husband testified also that she did not, but that he signed her name to it, and the notary testified that he took her acknowledgment over the telephone. Law required her personal appearance before the officer taking her acknowledgment, and it could not be taken over a telephone. Nevada County Bank v. Gee, 130 Ark. 312; Waldon v Blassengame, 130 Ark. 448; McLeod v. McLeod, 130 Ark. 481; Polk v. Brown, 117 Ark. 321. It is undisputed that the Reynolds place was appellant's homestead when the deed of trust was executed on December 22, 1919, and no subsequent abandonment could operate to cure its invalidity. Pipkin v. Williams, 57 Ark. 242; Taylor v. Hargus, 60 Am. Dec. 606; Alt v. Bankholzer, 12 A. S. R. 47; Am. Sav. & L. Assn. v. Burghardt, 61 A. S. R. 507. When there is an intention to return to one's homestead, a temporary absence does not operate as an abandonment. Stewart v. Pritchard, 101 Ark. 101; McDaniel v. Conlan, 134 Ark. 519. Even had Wooten, the husband, attempted or contracted to sell the homestead, he could fail to do so without being liable to damages when his wife did not join. Ferrell v. Wood, 149 Ark. 376. The absence of the owner from the homestead, however long continued, will not constitute an abandonment, without a fixed intention to renounce and forsake, or to leave never to return. Euper v. Alkire, 37 Ark. 283; Brown v. Watson, 41 Ark. 309. There is nothing in this entire record indicating an intention on part of appellants to abandon their homestead, and the decree as to the homestead tract should be reversed.

Basil Baker, for appellees.

If appellant had a homestead on the Reynolds place, he must have held the constant and abiding intention of returning to it after moving away, his absence must have been merely temporary, in order not to constitute an abandonment of it. Euper v. Alkire, 37 Ark. 283; Gates v. Steel, 48 Ark. 539; Stewart v. Pritchard, 101 Ark. 101. Husband can abandon without wife's consent. Farmers' Building & L. Assn. v. Jones, 68 Ark. 76; Curtis v. De-Jardins, 55 Ark. 126; Pipkin v. Williams, 57 Ark. 242; Sidway v. Lawson, 58 Ark. 117; Whipple v. Keith, 134 Ark. 202; Wolf v. Hawkins, 60 Ark. 262; Brown v. People's Bank, 150 Ark. 136; Bernhart v. Gorman, 131 Ark. 116. Doctrine of estoppel applies. Green v. Coldwaver, 99 Ark. 260; Sumpter v. Ark. Nat'l. Bank, 69 Ark. 224; 21 C. J. 1202, sec. 205. Effect of declaration of intention not to return. Dean v. Cole, 141 Ark. 177; Long v. Hoffman, 103 Ark. 574; Cunningham v. Dellman, 151 Ark. 409; Gray v. Bank of Hartford, 137 Ark. 232; McDaniel v. Conlan, 134 Ark. 519; Vestal v. Vestal, 137 Ark. 309. The qualified intention was an abandonment. Wolf v. Hawkins, 60 Ark. 262. Particular form of acknowledgment of deed to homestead not required of wife. Pipkins v. Williams, supra; Sledge & Norfleet Co. v. Craig, 87 Ark. 371; Ward v. Stark, 91 Ark. 268.

OPINION

HUMPHREYS, J.

Appellees brought suit against appellants in the Poinsett Chancery Court to foreclose a deed of trust executed by appellants to appellees upon the SE 1/4, NW 1/4, section 26, township 11 north, range 7 east, and other lands in said county, to secure a large indebtedness.

Appellants interposed the defense that the deed of trust was invalid as to the dower interest of Mattie L. Wooten in all of the lands, on the alleged ground that she did not sign or acknowledge the instrument, and invalid as to the interest of both in the forty-acre tract particularly described above, on the alleged ground that it was their homestead, and in executing the instrument there was a failure to comply with the law necessary to convey homesteads.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree adverse to appellants, from which is this appeal.

Appellant, G. C. Wooten, bought the forty-acre tract above described in the year 1916, and impressed it as his homestead by actual occupancy and otherwise. He also purchased the adjoining forty-acre tract, called the Wall place. He built a barn upon the Wall place and made other improvements upon both places of a substantial and permanent character. About January 1, 1918, he leased the plantation known as the Chapman & Dewey lands and moved upon and occupied them during the years 1918 and 1919, but with the declared purpose of returning later on to the Reynolds place, which he called his home place. While occupying these leased lands, he purchased two other large tracts, which adjoined, one known as the Harris and the other as the Marr place. These were good places, well located for farming purposes, and near the school. In order to make the initial payment on the Harris place, he executed the deed of trust in question to appellees on the 22nd day of December, 1919. J. D. DuBard, the cashier of the bank, testified that when G. C. Wooten applied for and obtained the loan he said he intended to sell the Wall and Reynolds places, and, as they were sold, to apply the proceeds to the payment of the debt, whereupon he prepared the notes and deed of trust and gave them to Wooten to be executed; that Wooten returned them duly executed and received the money; that in February or March, 1921, Wooten sold the Wall place to Schoenberger & Blum and applied the proceeds to the payment of the debt, according to promise; that Wooten sold the Reynolds place to Dr. Sims, who executed his note for $ 2,000 to cover the cash payment which was to be made after Wooten borrowed and placed a $ 2,000 mortgage on the place, which mortgage Sims was to assume; that the sale was not finally consummated because the money market tightened up and prevented Wooten from borrowing $ 2,000 on the long-time paper, and because Sims was unable to get the money to make a cash payment; that he examined the signatures on the deed of trust and discovered that Mr. and Mrs. Wooten's names were signed by different persons in different colored ink; that in September, 1921, he demanded a payment upon the indebtedness; that Wooten refused to pay anything, and said, "Well, I have good grounds to scrap you on, and I might as well tell you now as later; I forged my wife's name to the deed of trust which you hold, and if you insist on carrying this into court, it may send me to the penitentiary, but it won't make you any money; but if you let me alone I will pay it."

The record reflects that appellant made an oral sale of the Reynolds place and received some earnest money on it, but afterwards backed out and returned the money and offered to sell it to others; it also reflects that he moved off of the leased land to the Marr place, and made a number of improvements upon it and the Harris place, such as screening and repairing the main dwelling, building tenant houses, planting out an orchard, building a large barn, etc it also reflects that, during the time he was improving the Marr and Harris places, he told friends and neighbors that he intended to make the Marr place his home; it also reflects that he had a change for the worse in fortune, due to the slump in the price of cotton, and, when pressed by the bank and other creditors, he moved, at an unusual time of the year, back to the Reynolds place, claiming that it had always been their homestead. The following testimony, in substance, appears in the record concerning the execution and acknowledgment of the deed of trust: G. C. Wooten testified that he signed his name to the notes and deed of trust at the bank, and signed his wife's name to them at Williams' store; that he signed her name because he knew she would not do so at his request; that he signed her name without her knowledge or consent, and did not inform her that he had done so until the year 1921; that he took the papers to F. R. Proctor, notary public, and told him to call his wife over the telephone and take her acknowledgment; that he left the papers with the notary, and got them later in the day; that he took them to Mr. BuBard, and called his attention to the fact that he had signed his wife's name to them. Emmit Wooten, appellant's son, who was with him at the time, also testified that his father called Mr. DuBard's attention to the fact that he had signed his mother's name. Mr. DuBard denied that his attention was called to this fact, and said if it had been he would not have accepted the papers. Mrs. Mattie L....