64 Ark. 7 | Ark. | 1897
(after stating the facts.) Where a person entitled to claim a homestead exemption owns two parcels of land which corner, and who has his dwelling and resides upon one of them, and they together do not exceed 160 acres in quantity, nor $2,500 in value, can he legally claim as a part of his homestead the parcel other than that upon which his dwelling house is,—exempt from execution!
Sec.- 3711, Sand. & H. Dig., provides that: “The homestead, outside any city, town or village, owned and occupied as a residence, shall consist of not exceeding one hundred and sixty acres of land, with the improvements thereon, to be selected by the owner, etc.”
This court has heretofore defined a homestead to be “the place of a home or house—that part of a man’s landed property which is about and contiguous to his dwelling house.” Tumlinson v. Swinney, 22 Ark. 400. As defined in Webster’s Unabridged Dictionary, “contiguous” means “in actual or close contact; touching; adjacent; near; lying adjoining.” In McCrosky v. Walker, 55 Ark. 303, it is held that a homestead cannot consist of two non-contiguous tracts. In that case the two pieces of land claimed to constitute the homestead were one mile apart, the dwelling of the owner being on one parcel, and the other being used in connection with it to supply fuel. In the case at bar the two parcels touch, adjoin; i. e., corner with each other.
A homestead cannot be laid off in an arbitrary, capricious and unreasonable shape, where it is practical to do it otherwise. Sparks v. Day, 61 Ark. 570. In Jaffrey v. McGough, 88 Ala. 651, Judge Somerville humorously says: “A homestead, if we could suppose such a case, fenced in the shape of an animal, a bird, a flower garden, or other fantastic shape, would not cease to be exempt from execution on this account, provided it be of lawful area and value, and the entire tract owned was in this particular form. Although it is manifest that a selection in these quaint forms, made from a large tract of land, would be unreasonable and capricious, and not allowable.” In the case at bar, the appellants owned no land in any shape other than that claimed as a homestead, and as this did not exceed in quantity 160 acres, nor in value $2,500, they were entitled to claim the same as a homestead exempt from execution.
Where two parcels of land corner with each other, they are contiguous, they touch; and there can be nothing unreasonable or unjust in allowing the two pieces to be selected and claimed as a homestead, where they constitute all the land the claimant owns, and do not exceed the legal area and value. Unless this could be done in this case, the appellants would be deprived of a part of the land allowed them by law as a homestead. The homestead law should be liberally construed to effect its benign purposes. The judgment of the court sustaining the motion to quash the supersedeas as to the east half of the northwest quarter of the southwest quarter, and the northeast quarter of the southwest quarter of section twenty, in township nine north, range thirty-two west, is reversed and remanded, with directions to overrule the same.
The only .other question in the case is, is the judgment of the court overruling the motion to quash the supersedeas as to the land laid off into lots, and platted, and called “Dora,” correct? The contention of the appellant in the cross appeal is that, the land having been platted as laid off into lots, blocks and streets, and the plat having been filed in the clerk’s office, it was dedicated to public use, and became a village. It was not incorporated. It does not appear that there was any collection of houses there for residence or business, and it only appears that there was a post office there. There was no acceptance of the dedication, if dedication was intended. Does this constitute a town or village, so as to confine and limit the homestead to not more than one acre, which is the limit to the area which a homestead may cover in “any city, town or village,” as provided in section 3712, Sand. &. H. Dig.? We think not. In Murray v. Menefee, 20 Ark, 561, this court, through Judge Compton, said: “In this country, there seems to be no precise legal definition of the term ‘town,’ and we suppose it was used in the statute in its popular sense. * * * * There was at ‘Cadron’ one store, which did business to the amoiint of about $4,000 per annum; dwelling house for two families, and outhouses; the population consisted of two families, numbering in all six persons; one warehouse, from which in 1855 produce to the value of $200 was shipped. * * * In 1854, which was a favorable year, the exports amounted to the value of $1,500. To call this a town, in any sense, would be an obvious misapplication of the term.” It is evident that “Cadron” was more nearly a town than Dora was, which, according to this ease, was neither a town or a village.
We are of the opinion that the part of the land known as “Dora” had not been segregated and abandoned as part of appellants’ homestead, so as to avoid the claim of it as part of the homestead, Wherefore the judgment of the court overruling the motion to quash the supersedeas as to this, and allowing appellants to claim the same as part of their homestead, is affirmed.