Cowley v. Thompson

Wood, J., (after stating the facts.) The proof was not sufficient to show a sale of the land in controversy by the father of appellants. At the time of his death he was the owner, and the land was' contiguous to that upon which he resided and made his home. Clements v. Crawford County Bank, 64 Ark. 7. He had the right, at the time of his death, to claim enough of the land in controversy, contiguous to that upon which his dwelling was located, to make in all 160 acres, provided the number of acres thus selected did not exceed in value $2,500. When he died, not having made the selection, the right, by the Constitution, was cast upon his minor children. Cowley v. Spradlin, post, p. 190. This case is ruled by that. The court erred in not permitting appellants to redeem the entire estate in a portion of the lands in controversy under the homestead right. The court also erred in the decree as to rents, improvements and taxes. Inasmuch as the cause must be reversed and remanded for further proceedings, it is proper to say that the record in the case of Cowley v. Spradlin, post, p. 190, and this record, taken together, disclose the fact that appellants are seeking to redeem in each case from separate owners sixty acres of land as homestead, which, if they should recover, would give them more than the Constitution allows. It appears that the two separate suits were brought on the same day, and service was had on the two several defendants on the same day and at the same time, for aught the record shows to the contrary. It does not appear that the -cases were ever consolidated in the court below, but they were doubtless considered by the court together, and they have been so presented and considered here. The court below should have required appellants to elect as to which one of the two contiguous tracts they- would seek to redeem by virtue of their homestead right, as it was Obvious from the records which the court had before it that they were not entitled to redeem both the tracts at the same time. Either this, or the court should have ordered the defendant in one case to be made a party defendant in the other, for each of the defendants was interested in the suit against the other in the matter of the selection of the sixty acres to be redeemed under the right of homestead. Counsel for appellants in each case has suggested in his brief that it will be immaterial to appellants whether the right to redeem be confined to the 64 acres owned by Spradlin, or that owned by Thompson, or whether the 64 acres for redemption be selected by taking 32 acres from each of them. We agree with counsel for appellants that the latter course seems more equitable. For the .errors indicated, the decree will be reversed, and the cause remanded for further proceedings according to the principles and rules of equity, and not inconsistent with this opinion.