Greer v. Griffis-Newbern Co., 125 Ark. 456

125 Ark. 456 | Ark. | 1916

Wood, J.

(after stating the facts.)

(1) Appellant could not acquire a homestead in his own right so long as there was an outstanding right of homestead in his sister. Brooks v. Goodwin, 123 Ark. 607. See also Kulbeth v. Drew County Timber Co., 125 Ark. 291.

Upon the death of his sister, appellant came into possession of the property by virtue of his right of inheritance, and he could only ground a claim of homestead after having impressed and occupied it as such.

(2) A preponderance of the evidence shows that appellant was not entitled to have the lands declared exempt from execution under his claim of homestead, and the court’s judgment was correct, even though the court may have given an erroneous reason for it. The evidence shows that appellant never impressed the land with the character of homestead.

This court, in Tillar v. Bass, 57 Ark. 179, 183, upon a somewhat similar state of facts, said: “He (the -homestead claimant) testified that his intention, during the entire time that he owned it, was to make it his home, and that he considered it his home after he built the new house and moved his bed, but his occupancy before and after he built the new house, and until he moved his family, • was of the same character, he working and sleeping there while cultivating, and gathering crops. There was no evidence that he moved his household goods, domestic animals and other property, which usually attend the change from one to another home in the country. His family remained away. His stay was more like camping than a residence. It was not homelike. In short, there was no evidence to show that he actually and in good faith occupied his land as a residence before the levy of the execution.”

In Gebhart v. Merchant, 84 Ark. 359, we held that the “occupancy of a dwelling house with the intention of making it a homestead sometime in the future does not constitute an impressment upon it of the homestead character.”

Appellant’s family had never been upon the land in controversy and the character of the appellant’s occupancy was not such as to constitute a homestead.

The judgment is, therefore, affirmed.