852 SMITH V. WATKINS. _ [187 SMITH V. WATKINS. 1-3076-• Opinion delivered July 10, .1933. EKECUTIGN—COLLATERAL ATTACK: ON' SALE. L —Where- judgments were,rendered either upon personal service or upon confession of judgment, anr execution sale thereunder 'will not be set a gide on collateral . attack- for want of' jurisdictibn of the persons- of the judgment debtors. . . 2: JUSTICES OF THE PEACE—COLLATERAL ATTACK ON TUDGMENTS.—In a judgment debtor's action to • cancel a sheriff's sale; a" deniand for cancellation of- jUdgments ' of a justice of the peace under which the sale was made and restating of the account between the debtors and the creditbr held a collateral attack on such' judgments. 3. JUSTICES OF THE PEACE—LIEN OF JUI;OMENTS.—The lien of judgments of justices of the peace attached to tlie judgment debtor's • interests in land as . remaindermen from the date the transcripts • ,were filed with the . circuit clerk, as provided by Crawford & Moses' Dig., §, 6480. 4. HOMESTEAD—OCCUPANCY oF REMAINDERMEN.—Heirs living on lands in separate honses as remaindermen subject to a' life estate in their mother did not ocCupy the lands as a "homestead"' so as to render ekecution sales of their interesth•invalid. . • .Appeal froth - Columbia . Chancery Court; J. Y. Stevens, Chancellor ; affirmed. . Pearce cg Whitley,, for appellant. Ezra Garner, for appellee. . . MCHANEY, Appellee recovered judgments against • appellants - in the justice of the peace court as folloWs April 21, 1928, against Smith $267.01, against Decia $129.17. Against . Necie and Elliott Flowers $287.97, against Branton or Bration $221.25. Executions 'were later: issued' on said •jUdgments, placed in the • ha-ndS .of proper officialsc'and_wen returned nulla 22,' 1932, transcripts of" all four JUdgments were Med. in the cirCuit clerk's office, and on the same- day exeCutions issued thereon, placed in the• hands of the sheriff whO made a levy on April • 14, 1932, and oh May 14, 1932, sold the undivided interest' of appellants' in and to 320 acrcs . -of land formerly belonging to J. N. Smith, now•deceased, who was the father of the judgment debtors. • J:1\T: Sinith
ARK.] SMITH V. WATKINS. 853 died intestate; leaving-surviving him his widow an& ap-- pellants,: all: of whom. resided: upon said: land; but.. no; dower, or thornesteadthad ever 'been as signaLtothe wielaw;, Cassie. Smith, at: the -time of. the: levy' and . - sa , l e:. • Appellants brought ! thia action, in. the. chancery -court, praying a cancellation , of the sale made by the . 'sheriff; as a. cloud on: their -title, decreeing to, them , their hoinel. stead, rights., ii•F saidi lands as . remaind'erMen.'•. They 'alse sought. a- cancellation of the. judgment i. against -Necie Flowers. and. a restating- of' the , account' between Debie Hill' mid aPpellee. Appellee i demurred to the.' comPlaint; the court . sustained= the demurrer, and this , appeal folL-lowed. . . The court correctly sustained the , demurrer fer want of jurisdiction. Three *of the, judgments in :the: justice, of the peace courtwere-, upori personal' service, and . in the, case of Necie . Flowers, the' record shows , she apPearect in ceurt and confessed judgment. Nb motion was,-;made in either' case to aet aside, the , judgment': No appeal"' WaS; prayed or prosecuted. Appellants had a full; complete) andi , adequate remedy ' at law; :and' the, Complaint,. As to-Necie Flowers and' Decie, Hill; constitute's • a. collateral-attack: on the judgment' of the : justice; court' against them As- to . the' clainr . Or homeStead right' Of' appellant*:- the complaint alleges that they . '"Vere living- On tract of 320 a6es'::'of.' land held. by appellants' asi tenants .in common with five other heirs of J. N. Smith, deceased, who owned said tract of_ land_at_the time of his .death"; that they were so living in separate homes, each the head of a family, when said judgments were lodged in the clerk's office and the executions were levied ;- that Subsequent to the levy, but prior to . sale, Cassie Smith, April 29, 1932, conveyed to them , and the other heirs all her dower and homestead- rights to -said-lands: At the time' the levy,' the mother -. was, :a life , tenant- in.:.possession with. -dower and- homestead : rights. .unassigned; and she . ceuld have OlaiMed- 'the lalid's'exernpf as- agairiSeany of her creditors.. Ti l e. , heirs _we , re living . on said7:„land: in, separate- houses,. perhaps, as. tenants, of . the: mother-, but certainly not more than remaindermemsubject to :the life
estate.- -.No Particular tract of the 320 acres was oWned by any'of them until the terniination of the life estate,. and a partition of the land among the nine heirs, four of whom are apfiellants here. The lien of the judgments. attached to the interest of appellants from the date the transcriptions -were filed with the circuit clerk. A's we said in Brooks v. Goodwin, 123 Ark. 607, 186 S. W. 67 : "It is apparent that the occupancy must be accompanied by a present claim of a right to occupy, and one cannot occupy an estate in remainder as a residence. The owner of a particular estate alone has that present right of occupancy essential to impress the homestead character upon land." The language of the Constitution under which the homestead right is here asserted is : " The homestead outside of any city, town or' village -owned and occupied as a residence shall consist of not exceeding * *" etc. Appellants did not owri the residences occupied by them, although they had a future expectancy to own each a one-ninth interest in the land. At the time the lien of the judgments attached and at the time of levy no homestead rights had or could have attached or been set apart to them. The case is ruled by Brooks v. Goodwin, supra. See also Taylor v. Greene, 186 Ark. 817, 56 S. W. (2d) 432, and cases there cited. We find no error, so the decree is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.