ARK. ] CREEK MORE• V. SCOTT. 1113 -. CREEKNIORE SCOTT. • . Opinion delivered SePtembei 30, 1929. I . HOMESTEAD—ABANDONMENT.—Whether .a homestead h• as - been abandoned is a question of intention to be determined from the 'facts and circumstances of each case. 2. HOMESTEADS—INTENTION TO RETURN.—If the owner of a homestead has an unqualified intentfon to preserve it as a homestead and to return to it, 'his removal cannot result in . abandonment of the land as a hOmestead. 3. HomEsTEAD—Psoff OF ABANDONMENT.—kbandonment of a homestead may be proved by conduct, circumstances, and actions, as well as by direct testimony. • HOMESTEAD—EVIDENCE OP• ABANDON MENT.—Evidenee that one de-• fendant had not lived on hfs homestead for six ' years, but had lived and voted in another State,' and that the other defendant • had not lived on his homestead for . more than two years, and that both defendants had neglected . their homesteads, held to sustain a . finding that both defendants had- abandoned their homesteads. 5. APPEAL AND ERROR — coNcLusn r ENkss OE COURT'S FINDINGS.—Where there is' g ubstantial evidence . in support Of the findings of the trial court, it will not be set • aside on appeal. 6. APPEAL AND. ERROR — CONCLUSIVENESS OF COURT'S. FINDINGS.—W• here . the law makes the trial judge 'the . trier of faCts, his findings of fact are as conclusive on appeal as the verdict of a jury. Appeal from Boone Ciroult Court ; J. F. Koone, Judge; affirmed. - S. W. Woods, for appellant. J. M. Shinn and Henry Youngblood, for appellee.
111.4 CAEEKMORE v. 'SCOTT. [179 HART, C. J. Appellee, Julia Scott, recovered judgment in the circuit court for damages against appellants, Hench Creekmore and Claude Cree,lrmore,.for the sum of $5,000, and caused an execution 'to be; issued thereon, which was by the sheriff• levied upon two farms owned by appellants. Hench ,Creekrnoye .claimed one of the farms, which comprised ! ninety aere8,:as his homestead, and filed his schedule of exemptions with the clerk of the circuit court. Claude Creekmore , ownedione of the farms, comprising thirty acres, and filed his schedule of exemptions with the clerk, claiming it as his homestead. The circuit clerk refused to issue a supersedeas staying the sale under the execution, and each of the appellants appealed to the circuit Court. The circuit court heard the application . of each appellant for a supersedeas upon the evidence adduced at the , trial, and refused to grant the same. The case is here,,on According to the . evidence -adduced . ' by appellee, Hench Creekmore had not liVed , on his farni• TO more than two years 'before the . issilance-ot the' eXecutiOn, , and Claude Creekmore had not liVed .on farm, for ; more than six years before the- issuance of the execution. . Each one of the appellants had allowed his farni to become run down and the house , oitit td become badly out of repair.. No one occuPied:the hou"Se ori,either farra, and no one cultivated the land..'<Claude, Oreelunore left his farm and went to Missouri, and lived there with-his wife and children. Hench CreekMOre lived-With his Mother on his farm, and carried , :her to_ his; neW honie-in 'Carroll County when he left' - his home , place. - Claude Creekmore admitted. that Voted' in 'Mis-souri for President at , the lat presidential election, but testified that he never , abandoned hi s homestead, but intended to return to it as soon as he was able to do so. He claimed that he had left his hoMestead because of financial trouble, and never intended 'to permanently abandon it. It was shown by, one witness that Hench Creekmore had testified before the clerk, when he filed
ARK.] CREEKMORE V. SCOTT. 1115 his schedUle of exemptions, •that he had Voted one time iti Carroll County since he left his 'home. Hench Creek-more denied this, hOwever,, and testified that . he never, abandoned hiS homestead, but intended to return to it as' soon as he'could arrange , t6 do so. tach one of them admitted that his property ha'd been assessed at his neW place- of abode after he had left his , homestead, but insisted that hiS' intention was , to return to his homestead as soon as'be cOuld arrange his business affairs. . 'The cif Cuit court made a general finding in favor of appelleW, and it WaS adjUdged thai the application of each apPellarit fOr a suPerSedeas uspoil liis Schedule filed should be refused, and that proceedings under the .execution shoUld-g6 On 'as if , :no application for. a supersedeas had been Made. 'This' was tantanionnt to a finding that each äpflellarit ' had abandoned, hi s homestead and that the saine Was subject to the eXecution which had -been levied upon it„ This Court has Uniformly. held that an abandonment oi a homestead is almost, if not entirely, a question of intention . which must be determined from the facts and circumStauces attending each case.. The court has further held , that a removal from. the homestead may be caused. by necessity, or for business purposes, and that,
if, the owner has an unqualified :intention, to preserv6 it as a: homestead and tO return to it, his removal cannot resuli in the abandonMent Of the land as a homestead. Gazola y. Savage, 80 Ark. 249, 96 S. W. 981; Calcicleugh v: calqclengh, 158 Ark. 224, 250 8. W. 324, and cases cited. This court has held, however, that the abandonment of a homestead may be proved by conduct, circumstances and actions, as well as by direct testimony. Lilly v. Lilly,
178 Ark. 324, 11 S. W. (2d) 766.. Tested by this rule, we are of the Opinion that there is substantial evidence to sustain the'ci'rCuit court's finding that appellants intended to abandon their homesteads, and did abandon then” It
is true that each of them denied that such was his-intention, and testified that he intended to return to . his home-
1116 [179 stead ; yet the court might have found that this testimonr. was overcome: by the conduct of the appellants and the attendant circumstances. • Neither of them attempted to. rent out his homestead or to give any attention whatever to it. They permitted the houses to ;become badly out of repair; and did not attempt to have the land cultivated. One of them actually voted in the State of. Missouri, which tends to show that he intended to* live there and make that State his home. The court might have feund that the other assessed his property in Carroll County, and, by the neglect of his homestead, Whicli waS near by, evinced an intention to ulbandon it..and make his ,per-, thanent heme . elsewhere. It is well settled in . this State that, where ,there-,is substantial. evidence , in support of the !findings . Of the trial court, it will not be set aside : on appeal; ancithis rule has been frequently applied in cases of this sort. Robinson v. Swearengen, 55 Ark. 55, 17 S. W. 365 ; Gazola v. Savage, 80 Ark. 249, 96 S. W. 981 ; Harris v. Raiz', 107 Ark. 281., 154 S. W. 199; Bank v. Brown, 136 Ark. 517, 203 S. W. 579. . When the law' makes the judge. the trier of facts cases to which the constitutional right of trial by jury" does not extend,' the finding's Of fact by the circuit judge , are as conclusive on 'appeal. as the verdict of a jUry. Jones V. Glideweil, 53 Ark. 161, 13 S. W. 723, 7 L. R. A. 831 ; ]Hatthews v. Clay County, 125 Ark. 136, 188 S. W. 564, and caseS cited. . The result of Our vieWs is that the* judgment of the circuit court was correct; and it will therefore be 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.