Berry v. Meir , 70 Ark. 129 ( 1902 )

Per Curiam.

The question presented by this appeal is whether the storehouse owned by the appellant Berry is a part of his homestead. He is the owner of lot 3 of block 14 in the town of Clarendon, and resides with his family in a dwelling house on that lot, all of which he claims as a homestead. Certain of his creditors had an execution levied on the lot, and contended that the north part of it, on which the storehouse is located, is not a part of the homestead, nor exempt from execution. Although this storehouse was used by the debtor himself in his own business, there are decisions by the courts of other states to the effect that such a storehouse, entirely separate from the residence of the owner, and not used as an appurtenance or convenience of the dwelling house, is not a part of the homestead. In re Allen, 78 Cal. 293. But a majority of the judges are of the opinion that this court is committed to a different view of the law. In Gainus v. Cannon, 42 Ark. 504, Mr. Justice Bakin, speaking for the court, said: “It is a strange and irrational idea sometimes advanced that a.man ought to lose his homestead as soon as he attempts to make any part of it helpful in family expenses.” To like effect, see remarks of the same judge in Klenk v. Knoble, 37 Ark. 298. This view of the Jaw certainly works no injustice to the creditor where the value of the homestead, including the shop or store used for the business convenience of the owner, is small, as it is here, the whole being of the value of $900. Under these circumstances a majority of the judges are of the opinion that the execution defendant can hold the entire lot as a homestead, including that part occupied by his storehouse, unless he has done something to estop him from doing so.

After a careful reading of the transcript, we are all of the opinion that the evidence shows neither a waiver of this homestead right by appellant, nor anything to estop him from claiming such exemptions. The fact that he and his wife mortgaged the south two-thirds of the lot to a building and loan association, and released their rights of homestead in the land mortgaged, does not show that they claimed only the portion mortgaged as a homestead, for they had the right to mortgage all or any portion of the homestead. To our mind, this mortgage shows nothing beyond the fact that the part mortgaged was thought to be at least a part of the homestead. 'Whether it was all or onfy a part cannot be determined from the mortgage, which throws no light on that question. The deed to his wife of the north third of the lot shows that he intended to convey that portion of the lot to her, but it does not show that it was not a part of the homestead at that time. .If it was a part of the homestead, and the deed left any interest still in him, it could still be protected from sale under execution as a part of the homestead. The statement of the appellant made to Louis Solomon, and also to Will Thomason, that “he owned the dwelling house and storehouse on lot 3, block 14, and that it. was, all liable for his debts,” and by which statement they say they were induced to sell him goods, cannot control the decision in this case. In the first place, these statements were not made to Meir & Co., the plaintiffs; and, if they had been, they did not amount to a waiver of the appellant’s homestead rights. It is often, the case that men, when contracting debts, express their determination to pay them by say^ ing that all they have is subject to their debts, but this species of boasting does not estop or preclude them from afterwards claiming their homestead and exemption rights, if they choose to do so. It will be noticed that the statement alleged to have been made by the defendant was that the whole lot, including both the dwelling and storehouse, was liable for his debts. It did not therefore show" any separation of'the storehouse from the dwelling, for the statement puts both together. It was not an assertion that the storehouse was not a part of the homestead, but at most it was only a parol promise that he would not take advantage of the homestead laws. We doubt if, under any view of the law, it could be treated as a waiver or estoppel against the appellant; but, as the law does not now permit the husband to convey or mortgage his homestead unless his wife joins in the execution of such conveyance, the promise, if made, was of no effect, for his wife is not shown to have consented to it in any way.

The case of Klenk v. Knoble, 37 Ark. 298, upon which counsel for appellees rely, was very different from this, for the debtor in that case gave the creditor a mortgage, and in the description of the property used the following words: “The same being the lots upon which the said Joseph Knoble now has a brewery, and not a part or parcel of the homestead.”

As -the debtor had still remaining, besides the lots mortgaged, a dwelling house and a lot 75 by 140 feet, and as the lot mortgaged (to quote the language of the decision), “constituted no part of his actual residence,” the court held that the statement in the mortgage showed an intention to contract the area of his homestead, and estopped him from claiming the part mortgaged as a homestead against the mortgagee. This decision was made before the passage of the act making it necessary for the wife to join in conveyances of the homestead. But the appellant in this case executed no mortgage to the creditor, nor was it shown that either he or his wife had ever stated to the creditor, or anyone else, that this storehouse was not a part of the homestead. We find in the transcript nothing to estop him from claiming the whole of this lot as his homestead.

For the reasons stated, a majority of the judges are of the opinion that the defendant has the right to claim the entire lot as his homestead, and that the court erred in'quashing the supersedeas as to the part occupied by. the homestead. The judgment is therefore reversed, and the case remanded, with an order to overrule the motion to quash.