This case involves the priority of claims and a homestead exemption. The Chancellor held that the appellees’ claims come first. We reverse because the appellants’ claims are prior.
Appellee Ray Baker built a house on the property at issue in Pope County. He and his wife, Glenna, subsequently conveyed the property to their daughter and son-in-law, appellees Mary Ann and Boyd Dickey. To finance the purchase of the property, Mary Ann and Boyd borrowed $60,000 from Arkansas Valley Bank and secured the loan with a mortgage on the property, the first mortgage. They then paid the Bakers $47,000 for the home. The note and first mortgage were subsequently assigned to Alliance Mortgage Company. A note and second mortgage were subsequently given by Boyd and Mary Ann to the Arkansas Valley Bank to secure an indebtedness arising from Boyd’s used car business.
On August 26, 1987, Mary Ann filed for divorce and was temporarily awarded exclusive use of the property. Boyd Dickey testified that he left the property soon thereafter and never planned to return, thereby abandoning his homestead interest in the property. On September 1, 1987, appellant Nan Blackford obtained a judgment against Boyd in Pope County.
During this period, Mary Ann and the Bakers discussed the indebtedness. Boyd and Mary Ann agreed to sign the property over to the Bakers to let them try to salvage it. At the time, Alliance Mortgage Company was about to foreclose because of overdue payments on its note. The Bakers sent Alliance a check for $2,535.52 to hold off any foreclosure action until they could get title to the property.
The Bakers then negotiated with officers of the Arkansas Valley Bank and were successful in getting them to enter into a Mutual Release Agreement dated November 15,1987, by which the Bakers paid $ 10,000.00, and Mary Ann was released from her obligation on the business note and the second mortgage which secured it. Boyd executed a new note for the remainder of that debt.
On November 16, 1987, Boyd, who was still married to Mary Ann, executed a quitclaim deed conveying the property in question to the Bakers. On November 23, 1987, Mary Ann also executed a quitclaim deed conveying the same property to the Bakers. Neither joined in the other’s deed. On December 29, 1987, appellant People’s Bank & Trust Company was awarded a judgment against Boyd Dickey in Pope County.
The Dickeys’ divorce decree was filed December 31, 1987. No homestead rights were reserved in the divorce decree; it simply provided “that all property rights arising between the parties have been fully disposed of . . . .”
On February 10, 1988, the Bakers borrowed $55,000 from appellee First National Bank of Russellville. The Bakers used that money to pay off the first mortgage at Alliance Mortgage Company.
Mary Ann subsequently married Jeff Kimbrough. On December 2, 1988, Boyd Dickey, Mary Ann Dickey Kimbrough, and Jeff Kimbrough executed an instrument which they styled “Correction Quitclaim Deed” in which the same property was again conveyed to the Bakers.
Appellants first contend that the chancellor erred in holding that Boyd Dickey conveyed title free of any judgment liens. The argument is well taken.
The sale of a homestead can convey title free of a judgment lien in existence at the time of the sale. Arkansas Sav. & Loan Ass’n v. Hayes,
No conveyance, mortgage, or other instrument affecting the homestead of any married person shall be of any validity, except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his or her spouse joins in the execution of the instrument and acknowledges it.
(Emphasis added.)
The language of this statute could not be clearer. We have long held that deeds made without regard to this statute are void and leave the title as if they had not been made. Pipkin v. Williams,
The right to a homestead exemption in property is a personal right which must be exercised by the party who seeks its benefits, Arkansas Sav. & Loan Ass’n v. Hayes,
Here, it is clear that Mary Ann guarded Boyd’s homestead exemption in the property; however, upon their divorce, Mary Ann and Boyd became tenants in common, each possessing an undivided, one-half interest in the property. Villanova v. Pollock,
The other argument in which we find merit is that application of the doctrine of subrogation was not appropriate because appellees Ray and Glenna Baker were “volunteers” in paying off the first and second mortgages on the property. The doctrine of subrogation is an equitable one which has as its basis the doing of complete and perfect justice between parties. Baker v. Leigh,
Further, the equities of one seeking subrogation must be superior to those of other claimants. Here, the Bakers, as caring parents, were trying to protect their daughter, Mary Ann. They were not trying to protect Boyd. Any benefit to him was only secondary. This is evidenced by their actions on the second mortgage. The debt on the note secured by the second mortgage amounted to more than $82,000.00. The Bakers paid the holder of the note, Arkansas Valley Bank, $10,000.00 to release Mary Ann from the liability on the note, but, did not attempt to secure Boyd’s release. In fact, as part of the agreement, Boyd was required to execute a new note for the difference to the Bank. The Bakers made no effort to satisfy Boyd’s judgment creditors whose judgment liens had long been attached. Thus, it cannot be said that the Bakers’ equities are greater than those of Boyd’s judgment' creditors. Appellee First National Bank of Russellville does not demonstrate any equitable reason whatsoever for subrogation.
Reversed and remanded for proceedings consistent with this opinion.