Cowley v. Spradlin , 77 Ark. 190 ( 1905 )

Wood, J.,

(after stating the facts.) 1. Sec. 4, art. 9, of the Constitution is as follows: “The homestead outside any city, town or village, owned and occupied as a residence, shall consist of not exceeding 160 acres of land, with the improvements thereon, to be selected by the owner, provided the same shall not exceed in value the sum of twenty-five hundred dollars,” etc.

The 64 acres which appellants seek to redeem under the right of homestead were contiguous to the 96 acres upon which the father of appellants lived and had his home at the time of his death. Moreover, the proof showed that they were cultivated by him together with the home place as “a farm.” The homestead character was duly impressed upon this 64 acres by the father before his death. The proof shows that the home place and these 64 acres did not exceed in value $2,500. Therefore, no other impressment was necessary than the occupation as a home of the place contiguous to these 64 acres; for by this all the world had notice that the 64 acres contiguous could be selected by the owner as a part of his homestead. Clements v. Crawford County Bank, 64 Ark. 7. The 64 acres, taken in connection with the 96 acres, were not claimed to be unreasonable or arbitrary in shape, and thus injurious to others. The owner had the right to select his homestead in that form. Sparks v. Day, 61 Ark. 570.

At the death of the parents the homestead vests in the minor children, g Const. art. 9, § § 4 and 10. The designation of the number of acres and the particular tracts for the homestead does not have to be made by the owner until the necessity therefor arises. If parents die without making the selection, the right to do so inures to the benefit of their minor children. Const, art. 9, § 10, supra. They are then the owners of the homestead. They are the remaining members of the family circle, who need the asylum which the law has wisely provided to protect them from dependence and want. Tumlinson v. Swinney, 22 Ark. 400; Harbison v. Vaughan, 42 Ark. 539. As infants are not sui juris, they cannot make the selection for themselves, for they might not make a selection that would be for their benefit. It is, therefore, the duty of a court oí chancery, when application is made by infants to redeem, under the homestead estate, lands contiguous to that upon which the dwelling is situated, to appoint a commissioner or commissioners to lay off and select the homestead for them within the limitations of the Constitution, according to the well-recognized rules of law governing the selection of a homestead. Grimes v. Luster, 73 Ark. 266. Primarily, the selection must be made for the benefit of the infants, and then in such manner as not to capriciously or arbitrarily injure others who may be interested. Sparks v. Day, 61 Ark. supra. It is held in Seger v. Spurlock, 59 Ark. 147, that a minor may redeem the entire homestead from tax sale, and the homestead estate is a sufficient interest to enable the minor to redeem the entire estate — the fee— from such sales. Seger v. Spurlock, supra; Waterman v. Irby, 76 Ark. 551; Smith v. Thornton, 74 Ark. 572; Wilks v. Vaughan, 73 Ark. 174. The court erred therefore in refusing appellants the right to redeem the entire estate in the 64 acres.

2. By the tax sale all the estate in the lands in controversy passed to appellee. Craig v. Flanagin, 21 Ark. 319. Appellants had only the privilege of redeeming “from and after the sale” until the expiration of two years after they had reached their majority. Kirby’s Digest, § 7095; Bender v. Bean, 52 Ark. 132.

In order to redeem, the minors must pay to the purchaser at tax sale, for the improvements made after two years from the date of sale, the full cash value thereof, which is a charge upon the land. They must also pay all taxes and costs incurred by the tax owner in procuring the lands and in keeping the tg.xes paid, with interest thereon. Bender v. Bean, 52 Ark. 132. See also McCann v. Smith, 65 Ark. 305. It does not appear from the complaint or any proof in the case that there was any tender of taxes and the value of improvements, and that appellee refused same. Appellants, therefore, were not entitled to any rents until appellee filed his answer denying the right of appellants to redeem. Bender v. Bean, 52 Ark. supra. See also Seger v. Spurlock, 59 Ark. supra. For the errors indicated the decree is reversed, and the cause will be remanded for further proceedings according to the rules of equity, and not inconsistent with this opinion.