78 Ark. 479 | Ark. | 1906
P. F. Shell owned the land in controversy, and was living near it with his wife and two children when he died. He intended to make it his homestead, and had a house in the course of construction and nearly completed when he sickened and died. He expected to have the house ready to move into it on Christmas day, 1880, but he took sick on December 13, and died on December, 17. Fifteen acres had been cleared and fenced, and he had planted turnips thereon; a stable and crib were finished, and Shell was hauling corn to the crib when he took sick. The house was finished after Shell’s death, and the family moved into it and occupied it for a time. Subsequently they removed to relatives in Tennessee, and Mrs. Shell married again. The land was sold under orders of the probate court, and purchased by Samuel Crockett, and Crockett sold to- appellee, Young. Crockett and Young have been continuously in possession since the purchase till' this suit, a period of 14 years. The suit is by the widow and heirs of Shell to recover the land, and they lost in the circuit court, and have appealed.
But this case fails to reach to this humane extension of the homestead character. There was no house ready for occupancy, and no place for the family to reside, and there never had been. The house was nearing completion, but the roof tree made it no more the homestead than the mudsill. The usual constituents of occupancy were absent, and necessarily absent until there was a house upon the land “occupied as a residence,” or ready to be “occupied as a residence,” in the language of the Constitution. Art. 9, § 4.
Chief Justice English said: “A homestead necessarily includes the idea of a house for a residence, or mansion house. The dwelling may be a splendid mansion, .a cabin, or tent. If there be either, it is under the protection of the law, but there must be a home residence before it, and the land on which it is situated, can be claimed as a homestead.” Williams v. Dorris, 31 Ark. 466. This statement was quoted and affirmed in Tillar v. Bass, 57 Ark. 179, where the court said: “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. His intention to do as at a future time, and failure on account of his wife’s condition, did not endow it with the character of a homestead.” See also Gibbs v. Adams, 76 Ark. 575.
Under the settled law in this State, giving the most liberal construction to the homestead exemption in order to effectuate the design of the framers of the Constitution, the facts here fail to show an impressment of the homestead character upon the land.
Judgment is affirmed.