55 Ark. 101 | Ark. | 1891
The question seems to have arisen but few times since exemption rights were conferred by law. Mr. Thompson, in his treatise, refers to the fact that such a case might arise, but indicates no opinion as to the law that would govern it. Thomp. on Home. & Ex., sec. 83,0. In a case in which the defendant failed to claim his exemptions before sale, on account of absence in attendance upon a sick family, the Supreme Court of California held that the sale was no bar to his claim. Haswell v. Parsons, 15 Cal., 266. And this court held that a sale did not divest a debtor’s homestead where the failure to claim it before sale was occasioned by the fraud of the plaintiff Carter v. Jennings, 53 Ark., 242.
If a failure to make the claim in proper time may be excused for fraud, upon like principle it would, we think, be excused for unavoidable accident or mistake. In this case the debtor did everything in his power to assert his constitutional rights in the manner provided by the statute. On the day of the levy he gave notice of his intention to claim his exemptions; he could do nothing more until after a lapse of five days ; and within that time he died.
He was still the owner of the property, subject to a defeasible lien which he was proceeding to displace when prevented by his death. As he left a widow and personal estate, including the mule, worth less than $300, it passed to her. Acts 1887, p. 207. She could not prevent the sale by filing the schedule and obtaining a supersedeas, for this remedy is provided for the debtor only. But she did all that she could do to assert her rights and hold the property, and all that it was necessary to do to protect the judgment creditor as well as bidders at the execution sale, by giving notice at the sale of her rights and intention to assert them. When the policy of the law is considered, it cannot be held that she forfeited its benefits because she did no more.
Affirm.