71 Ark. 206 | Ark. | 1903
(after stating the facts.) This was a suit in equity to enjoin two judgments; one a judgment for money and the other a judgment in ejectment for the recovery of land, the latter judgment being based on an execution sale under the former judgment. It seems to have been conceded on the trial that the judgment in the action of ejectment was invalid by reason of the fact that there was no summons served upon Thomas, the defendant in that action, and no question is made here as to that judgment. As to the money judgment, the special chancellor found that the evidence was not sufficient to overcome the presumption arising from the recital of service in the record and the return, of the officer that he had served the summons upon the defendant. He therefore held that the judgment was valid and binding upon defendant. After considering the evidence, we are of the opinion that this ruling was correct.
On the next point, as to whether the land seized and sold under the execution was the homestead of the defendant, the chancellor found that Thomas was for a period of about ten years the head of a family, and resided upon the land in question, of which he was the owner, and that he has continued to reside upon this land, .and still resides upon it, and claims it as a homestead. The chancellor thereupon held that the land was his homestead, and exempt from execution. On this question, we feel that there is more room for doubt, but, after consideration of the evidence, we think it is sufficient to uphold the finding that Thomas after the death of his father owned and lived upon this 110 acres of land, that his mother and a single sister lived with him, that he supported them, and was the’ head of the family. This being so, it follows that he was entitled, as the head of a family, to claim this land as a homestead. Afterwards, in the course of time, his mother and sister died, and he has now no family. But, though a man cannot acquire .a homestead right without a family, yet, when the homestead estate is once acquired, he is not, under the law, as construed by the decisions in this state, deprived of it- by the loss of his family. “When the association of persons which constitutes the family is broken up,- whether by separation or the death of some of the members, the right of homestead continues in the former head of the family, provided he still resides at his old home.” This ruling was made in the case of Stanley v. Snyder, 43 Ark. 429, and, though it has often been criticised, it has been followed in so many cases since that it must now be considered as settled. Under these decisions, we are of the opinion that the decision of the chancellor that the land in question was a homestead is supported by the evidence, and it must be affiimed.
Counsel for appellant further contend that Thomas cannot claim his homestead as exempt against the judgment in this case for the reason that he had heretofore mortgaged his homestead to secure the debt for which the judgment was rendered. But, if that be so, the question as to whether such mortgage is a lien on the homestead will be presented when an action is brought to foreclose the mortgage, or when he seeks to obtain possession of the land by virtue of the mortgage. Eo such question is presented here, for the judgment against which Thomas sets up the right of homestead is a judgment at law on the debt, and not a judgment foreclosing the mortgage. On the whole case, we think the judgment should be affirmed, and it is so ordered.
