55 Ark. 139 | Ark. | 1891
Under the constitution of 1868 it was-held that the right of a debtor to hold a homestead exempt from sale under execution was a personal privilege which-the debtor might waive, and that he would be held to have waived it by failure to claim it, in the manner provided by law, before sale under execution. Norris v. Kidd, 28 Ark., 485. It has been held that the same rule obtained under the constitution of 1874. Chambers v. Perry, 47 Ark., 400.
The act of March 18, 1887, does not enlarge, or in any manner change, the character of the right; but, leaving the right as it had previously existed, this act provides that the right shall not be lost or forfeited by the debtor’s omission to select and claim his homestead before sale under execution, nor by his failure to file a description or schedule of” the same in the office of thé recorder; and, by the terms of a proviso, cases coming within its provisions are left subject to prior laws in all respects. The extent of the change thus made is that a debtor shall not be considered to have waived his right to exemptions, in cases not within the proviso, by his failure to select and claim them before sale. It does not provide that the right shall not be a privilege, or that it may not be waived by the debtor; to this extent the rule as formerly announced is maintained.
If this case comes within the proviso, the sale under exe-cution carried the defendant’s title, he having omitted to select and claim it before sale, and the purchaser would be bound upon his note for the purchase money. But it is insisted that this case comes within the rule, and not within the exception, and that the debtor was not prejudiced by omitting to select and claim his homestead before sale ; that, the homestead being exempt from sale, nothing passed to the purchaser; and that the note for the purchase money was therefore without consideration and void.
If the premises are true, the conclusion is correct; and the question is, are they true ? 2 Freeman Ex., sec. 313^.
Is it a fact that if the homestead right was not forfeited by sale under execution, nothing passed by the sale ? We think not. Before the act of 1887, the right was a privilege, and it is still a privilege ; it could then be waived, and it may yet be waived. As against all the world except the debtor .and his wife, the sale is valid, and it is valid against them unless they or one of them elect to defeat it. If they neglect -or refrain from asserting such right, the debtor’s title vests in the purchaser. It cannot be said, therefore, that nothing passes ; it is more nearly correct to say that the purchaser takes a defeasible estate, and it is sufficient to constitute a valuable consideration. Whether the debtor will claim his exemption in this case is uncertain. He may choose to have his estate applied to the payment of his debts, rather than enjoy the benefit of his exemptions ; if he should do so, the purchaser would acquire all that he expected, and should be required to pay his bid. Until the purchase has been defeated by an assertion of homestead rights, it is too early to consider the relief to which the purchaser may then be entitled, or whether he will be entitled to any.
For the reason above indicated, the finding was contrary to the evidence, and judgment must be reversed and the cause remanded.