Brown v. Watson, 41 Ark. 309

Brown v. Watson

41 Ark. 309 | Ark. | 1883

OPINION.

1. Homested: A1 an Ronment. Temporary removal irom. We approve the finding of the chancellor upon the facts. The property was rightfully a homestead, and had never-been abandoned as such, although there had been temporary removals for business purposes. The complainant was-a journeyman carpenter, and compelled to seek work away from home. The wife had sometimes gone with him to-other places, working herself to aid in the family support. A part of the while, in the absence of the husband and wife,, the house was occupied by Watson’s mother and his children. Sometimes it was occupied by some one put in by Watson’s agent, and sometimes it was unoccupied, much neglected and going to dilapidation. Still the preponderance of the testimony is in favor of the view that Watson was absent from necessity, and regarded it as his only home, to be resorted to when all else failed. A homestead would be of little worth to the poor, if it might not be temporarily disused, at the calls of business, or health, or the numberless exigencies which often require the limited absence of whole families fiom the roof-tree. It may be closed or left in the charge of friends, or even left exposed, if there be be no abandonmrnt of an intention to retain it as a homestead. Length of time is unimportant, save as indication of intention.

2. same-. or 1878. The question of abandonment cannot become important in cases arising under the constitution of 1868, if the were the actual homestead when the incumbrance was tempted; that is, independently of questions of limitatations and estoppel. We might conceive cases, where an owner of a homestead having encumbered and abandoned it, might by standing by, and misleading another to its purchase, be estopped from claiming it. Or a title so acquired by any color, might ripen to validity. And the ordinary rules as to staleness would be as applicable to such claims as to any others. What this court has so often asserted as to make any further assertion unnecessary of it in the reports, is : that a mortgage or a deed of trust, or any attempted incumbrance on a homestead, other than those excepted in the constitution, is void. The owner may aban■don and sell the homestead the .next day, and make good ■title. It is not a question of good faith, or of sound morals. It is a matter of State policy. Whilst the owner might sell his homestead, and thus realize its fair value, the constitution meant to protect him and his family from the insidious temptation to incur debts upon it, in the sanguine •expectation of being able to discharge them; but which would in many cases result in having the home taken for an insignificant sum. It was easy for a creditor to take notice •of the homestead, and he cannot complain if he finds that to be void in his hands, which the constitution advised him would be so.

No schedule was necessary. If in answer to a bill for foreclosure, the homestead had not been claimed by defence, the opportunity would have passed, because the decree would become, between the parties, an adjudication of the right. Not so with regard to a deed of trust executed in pais. The maker may assert- his right by original bill, or the constitutional provision would be easily evaded.

:3. Advane•es after oSn 1S71' It is a matter of no consequence that much of the merx was advanced after the adoption of the constitution of 1874. The contract and attempted incumbrance were all under that of 1868, which continued to govern contracts made under it.

The wife was neither a necessary nor proper party, but the decree is not on this account any more prejudicial to appellant. It is not in her favor.

We find no error in the record. Affirm.