Harris v. Ray , 107 Ark. 281 ( 1913 )

McCulloch, C. J.

The controversy in this case arises over the right of appellee to claim a homestead in Bandolph County, Arkansas, from sale under execution ¡n appellant’s favor. The circuit court decided the issue of fact in appellee’s favor upon conflicting testimony, and if the finding of the court is supported by legally sufficient evidence it is our duty not to disturb it, even though the finding appears to us to he against the preponderance of the evidence. Robinson v. Swearingen, 55 Ark. 55; Gazola v. Savage, 80 Ark. 249.

Appellee was a widow and occupied as her homestead a tract of land in Randolph County, in which she owned a life estate, conveyed to her many years ago by her father. In January, 1911, she intermarried with George Ray, who was a railroad conductor and resided-in Oklahoma, where he had been for five or six years. Ray formerly lived in Arkansas, at different points, and afterwards moved to Texas, and thence to Oklahoma, being a railroad man during all that time. Appellee went to Oklahoma with her husband, and leased the tract of land in controversy for a limited period. She left some of her personal property in Randolph County, and testified in this case that she left with the intention of returning and occupying the homestead. During the few months she remained in Oklahoma an application was made to her to sell the place, which she declined to do, the testimony tending to show that her husband acquiesced in this purpose and intended to- sell his property in Oklahoma and return to Arkansas with his wife.

The judgment in appellant’s favor was rendered in July, 1911, and execution was sued out and levied on this land a short time thereafter. In November, 1911, appellee returned to Arkansas and again occupied the homestead.

It is undisputed that the tract of land in controversy had been impressed by appellee with the character of a homestead and that she occupied it until the time she intermarried with Ray and removed with him to Oklahoma. She claims that her removal was only for a temporary purpose and that she intended to return.

Appellant adduced testimony tending to establish the fact'that appellee had no intention of returning to Arkansas and so declared herself to her neighbors and friends.

The question presented is, whether or not the evidence is sufficient to warrant the finding that there was no abandonment of the homestead.

Numerous decisions of this court establish thoroughly the principle that a temporary removal from a homestead, once impressed as such, does not constitute an abandonment. Euper v. Alkire, 37 Ark. 283; Robinson v. Swearingen, 55 Ark. 55; Gates v. Steele, 48 Ark. 539; Robson v. Hough, 56 Ark. 621; Gazola v. Savage, 80 Ark. 249; Gebhart v. Merchant, 84 Ark. 359.

Our conclusion is that the evidence is sufficient for the purpose of showing there was no abandonment of the homestead. It is unnecessary to enumerate all the facts and circumstances which can be regarded as supporting the finding; but giving it its strongest probative force in appelles favor it is legally sufficient, we think, to support the finding of the trial judge.

It is contended by counsel for appellant that appellee’s intermarriage with a man who lived in another State ipso facto operated as an abandonment of the homestead merely for the reason that her legal domicile followed that of her husband.

It is true that in law the domocile of the wife follows that of the husband. Johnston v. Turner, 29 Ark. 280; Hairston v. Hairston, 27 Miss. 704; Story on Conflict of Laws, § 46. But this does not necessarily result in a holding that, regardless of the intention of the parties, the homestead must be treated as abandoned. The Constitution of this State confers homestead rights upon a resident of the State who is a married person or the head of a family, and when a homestead is acquired by a resident, temporary absence, even in another State, does not work an abandonment. Even where one exercises, during the time of temporary absence from the homestead, the rights of citizenship at another place, such as voting, this does not necessarily imply an abandonment of the homestead. In other words, where an actual resident of this State acquires a homestead here, the mere exercise of acts of citizenship in another State while temporarily absent from the homestead does not necessarily amount to an abandonment, though it may be considered strong evidence of such abandonment. Rand Lumber Co. v. Atkins, 116 Iowa 242; Cincinnati Leaf Tobacco Warehouse Co. v. Thompson, 105 Ky. 627; Minnesota Stoneware Co. v. McCrossen, 110 Wis, 316; Corey v. Schuster, 44 Neb. 269; Myers v. Elliott, 101 Ill. App. 86. Even though the legal domicile of the wife followrs that of the husband to another State, if she continues to reside upon the homestead or leaves it for a temporary purpose with intention to return, there is no abandonment.

Of course, there is no presumption that the wife will desert her husband and choose to return to the homestead without him, and if the evidence was clear that there was no intention on the part of the husband to return, that would negative any intention on the part of the wife to return. The evidence in this case does not, however, show that there was no intention on the part of the husband to join the wife in her return to her homestead after a temporary absence. There is some evidence to the contrary, and we are of the opinion that the court was warranted in finding that there was a bona fide intention on the part of the appellee to return to her homestead with her husband after a temporary absence and re-occupy it as her home. This being true, the court was warranted in its finding that there was no abandonment of the homestead. The judgment is therefore affirmed.