ARK.] BANK OF. QUITMAN V. MAHAR. 1111 '• • ; • c BANK OF 141.IITMAN. V.'MAHAR. ,; 4-4648 Opinion . 'fleliVered MaY.3, 1937. 1. HOMESTEAD.—Mere intention•-to. establish • the hoMestead chai-; , aCter to land Without actual, occupancy is not' sufficient; neither is occasionaloccupanc , y, if, in • f • a ct, ,one's • actual residence is elsewhere. . • . 2. -HOMEISTEAD.—One idist ieteail and in goOd faith occupy land as a residence; before . the• levY of ' an exeCution, to 'impre g s ; it with the homestead character and to make it exempt from the levy of the execution.. . 3. HomEsTEAn.- Where creditor' s Were pursuing the 'avner of land, arid such owner, two daYS i before judgment was . rendered against . her, went, with her. baby,- and, 'Avith 'permissicd of the'•tenant, occupied one room. on ; the 'premises, returning. to -her, mother's home before breakfast next . morning,. her occupancy , was, hed edoit to. feigned and not,in good faith, but onlY eoldrable in in defeat her judiment cieditori. ' ' ' ' • t ,•,• • .1. Appeal from Faulkner, ; Crircuit Court• J. S. Utley Jucicr e on Exchange reversed.- -- Clark,ce Clark fo , r appellant. .• George F. .1,109rtje.,; for appellee.
1112 BANK OF QUITMAN V. MAHAR. [193 MCHANEY, J. In his lifetime, William McAnless owned two farms in Faulkner county, Arkansas. One was a 96-acre farm and the other a 34-acre farm, the latter being about a mile distant from the former. He lived on the 34-acre farm at the time of his death which occurred in 1923. He left surviving him his widow, his daughter, 'Gracie, who, some time later, married L. S. Mahar, as his only heir-at-law. The widow and daughter continued to live on the 34-acre tract. Some time prior to June 15, 1935, appellee, her husband and mother, executed their joint note to appellant for borrowed money and on July 15, 1935, appellant obtained a judgment in the Faulkner circuit court against all three in the sum of $442.25, with interest and costs. On August 20, 1936, appellant caused an execution to be issued on this judgment and the sheriff levied upon said 96 acres of land. On August 26, 1936, appellee filed a schedule of her property and claimed the 96-acre farm exempt as her homestead. Appellant filed a response and exceptions to her claim of exemptions, alleging that said lands were not her homestead and that she resided on other lands which she owned and had willfully withheld from her schednle. The clerk of the court sustained her claim of exemptions and issued a supersedeas. Appellant then filed in the circuit court a motion to quash the supersedeas on which a trial was had and the court, sitting as a jury, denied appellant's motion to quash ,and sustained the action of the clerk, from which is this appeal. The question presented on this appeal is : Did ap-pellee ever impress the 96-acre farm with the homestead character? At the outset it may be stated as well settled that mere intention to establish the homestead character to land without actual occupancy is not sufficient. Nor is mere occasional occupancy of it sufficient to impress it with the homestead character, if _in fact his actual residence . is elsewliere; One of Our leading ca ges is Tatar v: Bass, 57 Ark. 179, 21 S. W.-34, where 'it was held, to quote a syllabus : "Neither the intention of the owner of land to occupy it as his homestead, nor his
ARK.] BANK OF QUITMAN v. MAHAR. 1113 occasional occupancy . of it, as during harvest for the purpose of gathering his crops, will be sufficient to impress it with the character of a homestead if his actual home residence was elsewhere." In that case Tillar and Stanley recovered judgment against Bass and procured an execution to be levied upon certain -land belonging to him which he claimed exempt as his homestead. The clerk sustained his schedule and issued a supersedeas staying the execution. The plaintiffs applied to the circuit court, which sustained the right of homestead. This court reversed the judgment. In the opinion in that case, Judge BATTLE used this language; referring to appellee Bass : "He testified that his intention, during the entire time he owned it, was to make his land his home, and that he 'considered' it his home after he built the new house and moved his bed. But his occupancy before and after he built the new house, and until he moved his family, was of the same character, he working and sleeping there while cultivating and gathering crops. There was no evidence that he moved his household goods, domestic animals and other property, which usually attend the change from one to another home in the country. His family remained away. His stay was more like camping than a residence. It was not home-like. In short, there was no evidence to show that he actually and in good faith occupied his land as a residence before the .levy of the execution. His intention to do so at a future time, and failure on account of his wife's condition, did not endow -it with the character of a homestead. It was, nevertheless, sirt;ject to sale under execution at the time it was levied on." It will be seen, therefore,.that one must actually and in good faith occupy land as a residence, before the levy of an execution, to impress it with the . homestead character and to make it exempt from the levy of the execution. In the case at bar, it is undisputed that just two days prior to the rendition of the judgment against appellee, her husband, and mother, she undertook to impress the 96-acre tract with the homestead character. On . July
1114 BANK OF QUITMAN V. MAHAR. [193 13, 1935, 'she says that she took her baby and went over to the- 96-acre farm after -supper on Saturday night and spent the night there; returning to her old home on the 34-acre farm before breakfast. The 96-acre tract was rented; but she claims she arranged with the tenant to occupy one room of the house. She did not h.ave any personal property on this farm except that of her little girl-who . had a bedstead, some bedding, a table and perhaps -a few cooking utensils, which her mother had giyen her little 'girl. She alsO claims that she and her mother had a- "verbal agreement by which her mother was to take the. 34-acre farm and she -was -to take the 96-acre farm, but such agreement was not evidenced by any deeds. or written contracts. .The -facts in this ca, e are .quite similar to those in i Tillar v. .BasS, supra. In the present case, appellee; as before' stated, had a bed and a table, some cooking utensils: and staple skroceries in one room of a tenant house, Most of which belonged to her daughter. She claims to have slePt there only one night prior. to 'the rendition of appellant's judgment. The execution was issued, as before stated, on August -20, 1936,.•and from July 13, 1935; to that time or to- the time of filing her schedule, which was six days later; she does .not claim to • have spent over three or- four nights in the hoine the .96-acre farm -and . her days were • spent. with her mother, who is nearly blind and Who has to be looked after :13T appellee. It. -does not appear that the whole. family has ever: occupied: this house on the 96-acre farm or that they ever: moved their personal belongings to such farm, including live stock, poultry, and . whatnot. In Gibbs v. Adams, 76 Ark. 575, 89S:W. 1008, it was held that the burden is, on the homestead claimant to prove that. he • is entitled to the exemption and it was there further held,• to (incite a syllabus : "When a debtor sells his home and -abseonds, and his wife moves a few household goods into a dilapidated cabin on land which creditors are:about to. seize, all the circumstances must be considered -to: determine whether the claim of a houie-stead is made by her in good faith and with present intention to occupy the land as a home, or whether it is.
ARK.] .1115 only colorable and made to: shield the land from creditors." In that case,. the honiestead claim was denied. In Chastain V. Ark. Bank, & Trust Co., 157_ Ark. 423, 249 S. W. 1,. it was said: "There . can be no •such . thing as a fraudulent acqui8ition of a homestead, for the law permits if regardless ofjhe rights . of creditors.; Ferguson v. Little Ro e . k Tritst Co.; . 99 Ark. 45, 137 :S. ,W. 555,. Cas. 1913A, 960. It is quite :another' thing, however, to say that a given tract. or lot of-real, estaie must' be occupied in good faith as a home before it becomes. impressed with the character of' a homestead:under the law. This coUrt . haS' steadily, adhered to the rule that adtuat occupancy in 'good , faith is fesSential:to the jUipressment , of the • homestead Character. ; A mere intention to occupy as a homestead in the future is not sufficient. ,.(Citing cases.) "The good faith of . the occupancy may be inquired .into for the purpose; iiot' of determining . -Whether the occupant is e. ntitled tb iin*presS the property a g -a hoMe-. Stead; but 'Of deterriiiiiing 'whether the odeupancy Was -.to actually establish a home. Gibbs v. Adams, supra; 161.1- beth Drew County TiMber CO.,125"Ark. 291, 188S. W. 810." See, also, Freer v. Less, 159 Ark: 509; 252 .S., W. 354. When we apply theSe principlesAo the facts'in this case,. it appears to us to' :be .undoubted that appellee's .occupancy of the . 96-acre tract. was feigned, and . was -not in 'good faith, but was, only. Colorable in . an effort .to de-.feat . her judgmerit' creditors. •. • . The judgment of the; circuit court will; -therefore; .be reversed; and : the ' : ca-ase. reniairded With directions '•-to quash . the supersedeas:and , perrnit the execUtiofi creditor to proceed :to collect !its judgment. • .• .. • ..-, '
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.