35 Ark.f NOVEMBER TERM, 1879. 49 Bente11 vs. Armor. SENTELL VS. AIGMOB. 1. HOHNSTEAD OF TENANT IN CoMMON : Mortgage on, under constitution of 1868. A tenant in common has such a right of homestead in the estate in common, that he might, after executing a mortgage on his interest in it while the constitution of 1868 was in force, have it partitioned, and by fixing his dwelling on the part allotted to him, have it exempted from the foreclosure of the mortgage, unless the mortgage was for some of the excepted debts specified in .that constitution. APPEAL from Lafayette Circuit Court in. Chancery. Hon. J. K. YOUNG, Circuit.Judge. John Cook, for appellant Williams & Battle, contra. HAnnIsorr, J. Virginia W. Armor, on the seventh day of May, 1874, executed to George W. Sentell a mortgage on her undivided interest in certain lands-1,160.71 acres—owned in common by her and Francis W. Amor, to secure to said Sentell a debt of $2,654.14, to become due on the first day of January, 1875; and also as security for supplies, to be thereafter furnished her by him during that year. After the execution of the mortgage, partition of the lands was made between her and her co-tenant, and her share assigned and set apart to her in severalty. - A balance of her indebtedness- to him remaining unpaid, Sentellion the twenty seventh day of February, 1878, filed his complaint in equity against her for a. foreclosure of -the mortgage on the lands set apart to, and held in. severalty by her. • She made no other defense to the suit than to claim as a 35 Ark.-4
Q . SUPREME ,COURT OF ARKAigSAS, [35 Ark:, Sentell y, Armor; homestead a designated , yart of the . land-160 acres averring in her answer that she' Wa g when the mortgage was executed, and . 4d ever „since been,...a . resident . of Lafayette county, and the head of a family, and then .was,..,and bad e-tei sinee'_ been, residing With her family on, and occuPy-- ing the same as her homestead; that its Value did, not, exceed five thousand dollars, and she had not since . had: any other .homestead ; and that no part of . the indebtedness, for which the mortgage was -given Was far taxeS, laborers' or- mechanics' liens, or purchase-money of the homestead. The plaintiff deniurred : to the-answer as setting forth an insufficient defense. The dourt overruled the demurrer, and decreed a foreclosure and sale only as to, -and of, the, remainder of the lands. The plaintiff appealed. . 1. Home- It was decided in Greenwood & San v. Mad-stead of 'Tenant in • . dox & Toms, 17 Ark.,. 648, that-a co-tenant.has Cominon:, Exempt . 'from exe-SuCh, .a right . .of hoMestead iii . . the 'es-tate in cam, . , cution. mon, that he may, after an, executiOn - has 'been levied on-the land, have partition . made of it, and, by , fixing hiS dwelling_ on the , part set apart te. him, have the henefit of the homestead exemitien. . • . That case is decisive of thiS, as,to the.right . of a. co-tenant to a homestead in an estate in. Cominon The doctrine, though there. are decisians, to the contrary, is • well sUstained, both by reason and authority Mr i`teeinan, in his work'on coAenancY and partition,. says: "The hodieStead laws have all object peri Petry *Well . Underatoad, an& ill:- the promotion of Which courts may well emPlOyLthe mod libei 4 al and humane rules of interpre object is to''asSnre' to ithe*.unfOrtnnate debtai, and his 'equally mnfartunate'bfit Mare'helpless the shelter and . the influence of home. A co-tenant may lawfully ocetW evet.y par& of thè landt--iif c tih6-i3O-iei.iaticYl. ; He liar eniPloy them not merely for cultivation or for other meang--of.:Thaking
35 Ark.] NOVEMBER TERM, 1879. 51 • Sentell vs.- Arnaor. profits, bUt may also build houaes and 1;arils, plant shrubs and flowers, and surround himself with all the coMforts of home. His wife- and children may of right occupy and enjoy the premises with him Upon the land Of . which he is but a part owner he may, and: in fact he frequently does, obtain all the advantages of a home. These advantages are none the less Worthy of. being Secured to , him and his family id adversity, because the , other co-tenants are entitled to equal ad-vantakes in the same home. , -That he has not the whole is very unsatisfactory, and a very inhumane reasOn for depriving him of that Which h6 Freema.n;s Co-tenancy- and Partition sec. 54. •Mr. , Thompson, after an examination of the principal c • aseS, in support of the opposite view, remarks: . "One can:: easilY imagine cases where the rule that there . can be,no homestead in estates held in common would -Work peeuliar hardship . to poor debtors, and defeat the . apparent pur ' p oses of the homestead laws: Thus, , the parents die, leaving two sons, their sole heirs, in possession of the home , farm., They, finding the premises incapable of an equitable partition without sale, and knowing that the property would be saarifided by . Sale; ikterrnined to reside together, with their respective families, in the common dwelling, and work the farm in common. Under the view animadverted upon, neither can claim a homestead therein as against creditors, although the value of his interest is less than the value of the statutory exemption. But it is not necessaxy to search the imagination for] hard oases, for . the h • oolcs . *rnish them. Thus, in one case, the right of homestead was denied in lands held 1?3, .a. husband, his wife and their chikl, as. ten , ants ii1 common. - It was also denied; in lavor of a -creditor„to 'a: tel . :lent who 'was the sole occupant 'of the premises;
52 SUPREME . COURT OF ARKANSAS; [35 Ark, ing title to an undivided seventeen-eighteenths of the entire estate, which title he had purchased under the belief that he had acquired . the entire estate. The absurdity of such rulings is illustrated by the fact if he had been a naked trespasser, disputing the title of the real owner, the same court would have accorded to him the benefit of the exemption against his creditor. Thompson on Homesteads, sec. 188 . ; Hoback v. Hobade, 33 Ark., 399; MeClary v. Bixby, 36 Vt., 254; Thorn v. Thorn, 14 Iowa, 49; Hewitt v. Rankin, 41 Iowa, 35; Wil-liams v. Wethered, 37 Texac, 130; Smith, v. Deschaumer, 37 Texas, 429; Tarrant v. Twain, 15 Kan., 146; Horn V. Tufts, 39 N. H., 478. • The mortgage, as to the homestead, was void. M rt o ga g e on, during Sec. 2 of Art. of the constitution of 1868, the coma. tution of in force when the mortgage was given, was as 1868, void. follows: "Sec. 2. Hereafter the homestead of any resident of this state, who is a married man, or head of a family, shall not be incumbered in any manner while owned by him except for taxes, laborers' and mechani* liens and security for the pUrchase-money thereof." There is no error ,in the decree. 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.