Euper v. Alkire & Co.

37 Ark. 283

• Court: Supreme Court of Arkansas
• Decided: November 15, 1881
• Status: Published

Opinion

OPINION.

Harrison, J.

1. homeSTEAD: Temp i'&i? y i* ©- m o v a i from, no When a homestead right has once ' ° o-attached, a continuous actual occupation is not indispensable for its preservation. It is well settled by the authorix •* that a removal from the homestead for a temporary purpose, or with the attention of returning and again occupying it, is not such an abandonment as will forfeit the homestead right.

In the case of Wiggins v. Chance, 54 Ill., 175, where the owner rented out the premises for three years, and removed with his family from them, in the fall of the year, to a town in the same county, for the purpose of earning money to-pay his debts, but with the intention of returning, and did return the following spring, and resumed their occupancy with his family, it was held there was no abandonment of the homestead.

In the case of Fyffe v. Beers, 18 Iowa, 4, the owner had removed from the premises and been absent more -than four-years, and had, in that time, been engaged elsewhere in the business of inn keeping, but as she always intended to-return and again occupy them, as her homestead, it was-held that her homestead right still subsisted.

In that case the court said * * * * * “ If the removal is temporary and the animus revertendi is established, and third persons have not been led to believe it was-not a homestead by the owner, thus out of possession, and to act upon this belief by purchasing or specifically altering; their condition, upon the faith that it was not exempt as a. homestead, the law would treat the homestead i’ight as still subsisting.”

And, in the case of McMillan v. Warner, 38 Tex., 410, the Court said: “The question of abandonment is almost exelusivel}^ a question of intent, since no legal abandonment can occur without a fixed intent to renounce and forsake, or to leave never to return ; and to abandon a homestead, a party must forsake and leave it with the intent never to return to it again as a homestead.” Tumlinson v. Swinney, 22 Ark., 400; Stewart v. Brand, 23 Iowa, 477; Moss v. Warner, 10 Cal., 296: Potts v. Davenport, 79 Ill , 455; Walters v. The People, 18 Ill., 194; Shepherd v, Cassiday, 20 Tex., 24; Gouhenant v. Cockrell, Ib., 96; Hixon v. George, 18 Kan., 253; Thomp. on Homesteads, sees. 265, 266.

The complaint in this case alleged that when the plaintiff leased and removed from his homestead, it was with the intention of returning to and resuming the occupancy of it upon the termination of the lease, and had always so intended ; the truth of which allegation was admitted by the demurrer to the complaint.

-2. same: of, ing. And it was in like manner'admitted that he had, after the execution was sued out, explicitly selected and ° J designated his homestead, by filing a schedule of the property in question as such, with the clerk, and he was not required again to do so upon the suing out of the alias execution.

There can be no reason for a second selection or schedule in the same case, where there has been no change of circumstances.

The demurrer to the complaint should have been overruled. The deci-ee is therefore reversed, and the cause remanded for further proceedings.