Spurlock v. Gaikens

Hart, J.

(afaer stating the facts). Art. 9, sec. 3, of the Constitution of 1874 provides that the homestead of any resident of this State who is married or the head of a family shall not be subject to the lien of any judgment or decree of any court, or to sale under execution, or other process thereon, except such as may be rendered for the purchase money, or in certain other specified instances.

Counsel for appellant admit that the homestead in this case was not subject to execution under the judgment against Gaikens, hut they insist that the judgment be reversed under the authority of Snider v. Martin, 55 Ark. 139. In that case judgment was rendered and an execution issued and levied upon the homestead, and the purchaser at the execution sale executed his note to the sheriff for the purchase money. Upon being sued by the execution-creditor on the note, he defended on the ground that the homestead was not subject to. sale under the execution and that the note executed by him was on that account without consideration.

This court said that the sale was valid against every one except the debtor and his wife, and that the purchaser acquired an interest sufficient to constitute a valuable consideration. The court also said that the execution debtor might choose to waive his claim to a homestead, and that, until the purchase had been defeated by an ascertainment of the homestead rights, it was too soon to consider what relief the purchaser might be entitled'to, if any.

Under section 3902 of Kirby’s Digest, a debtor’s right of homestead is not lost or forfeited by his omission to select and claim it as exempt before the sale on execution. The section further provides that the debtor may set up his right of homestead when suit is brought against him for possession. Our Constitution exempts the homestead from sale under execution except in certain specified cases, which it is admitted does not apply here. The debtor is not required to perform any act, to discharge any duty in the -premises, or to manifest an intention to avail himself of its benefits. The deed by the sheriff to the purchaser at the execution sale has no effect on the title to the homestead beyond that of casting a cloud over it. The debtor need not claim his homestead as exempt. No affirmative action is required by him. He may occupy the homestead until he is sought to be evicted before he is required to act.

There is nothing' in the record to show that the debtor in the instant case intended to abandon his homestead or to waive his claim of exemption thereto. It is claimed that Ms deed to the homestead is void because his wife did not join in the execution of it. In our view of the case, it does not make any difference whether his attempted sale of the' homestead after execution was under a void deed or not. The mere fact that he attempted to sell his homestead shows that he did not intend to abandon it, or to waive his claim of exemption.

As above stated, the execution debtor need not claim the homestead until he is sought to he evicted from it and the purchaser at the execution sale seeks to obtain possession of the property. Hence his right to the homestead has never been made an issue, and there is nothing in the record to indicate that he abandoned his claim of thé homestead. It is conceded that the appellant must recover, if at all, on the strength of his own title. This is true.

It follows that the judgment must he affirmed.