Jones v. Dillard , 70 Ark. 69 ( 1902 )

Wood, J.,

(after stating the facts.) The counsel for appellee states in his brief that “the only question is one of fact, and one only, and that is as to whether or not at the time of the execution of the deed to his wife in October, 1896, the entire 160 acres of land was his homestead, and whether it exceeded in value $2,500.” We are not advised of the grounds upon which the chancellor based his decision. But, taking the statement of counsel, supra, as the theory upon which the case was tried below and here, the decree was clearly against the weight of evidence.. The proof, we think, shows by a decided preponderance that the 160 acres, of which the land in controversy was a part, exceeded in value the sum of $2,-500. The judgment creditor was seeking to subject the whole tract. It is clear from the answer and the proof that the homestead of Dillard was upon the tract when he made the deed to his wife. Upon this homestead, including the dwelling house or home and such contiguous lands of the tract as Dillard or his wife might select, not exceeding in value the sum of $2,500, the judgment creditor had no lien. Stanley v. Snyder, 43 Ark. 249; Carmack v. Lovett, 44 Ark. 180; Bogan v. Cleveland, 52 Ark. 101, 12 S. W. 159; Davis v. Day, 56 Ark. 156, 19 S. W. 502; Crampton v. Schaap, 56 Ark. 253, 19 S. W. 669; Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433.

The right of homestead, however, is a personal privilege, of which appellee has not yet sought to avail herself as the law prescribes. Sections 3714, 3718, Sand. & H. Dig.; Snider v. Martin, 55 Ark. 139, 17 S. W. 712; Brown v. Peters, 53 Ark. 182, 13 S. W. 729; Pace v. Robbins, 67 Ark. 232, 54 S. W. 213. The complaint does not even set up the homestead right. Nor is there anything in the proof to show that the forty acres in controversy would necessarily be embraced in any selection of the homestead that corüd be made. The dwelling or home is not shown to be on the forty acres in controversy. On the contrary, the answer shows it to be on the west half of the southeast quarter of section 27, etc.

Reversed and remanded, with directions to dismiss the complaint for want of equity, but without prejudice.