dissenting: The debtor in this case was once the head of a family, and the lands in question were his homestead ; but this relation ceased, and when he was'no longer the head of a family bat wasstill living on the lands as a home, he sold them. The conveyance was attacked by his judgment creditors as a fraud upon their rights, and it is admitted that this is true unless the debtor had a homestead iu the lands at the time he conveyd them. If there was a homestead right in the debtor at that time, his creditors were not prejudiced by the conveyance, and, as is held in this case, cannot be heard to complain. The main question to be determined is, had the debtor a homestead under the law at the time of the .conveyance complained of?
No one can look into the previous decisions of this court and fail to see, that by its settled policy of construction, the primary object of the homestead laws has always been to provide tor the family, and that the protection which enures to to the benefit of the debtor himself is merely incidental. As long ago as McKenzie v. Murphy, 24 Ark., 155, Mr. Justice Fairchild for the court said, of a statute not materially varying from our present constitutional provision in this respect, that it intended no individual benefit for the head of the family, that “disconnected from the family, the head of it was entitled to no consideration.” As late as Harbison v. Vaughn, 42 Ark., 539, the policy was re-affirmed in almost the same language. Without awaiting a change in the law, the court now awards the debtor a homestead, not to protect his family against the vicissitudes of fortune, as was said in Ward v. Mayfield in 41 Ark., 94, but as a solace in his loneliness for their loss. What has heretofore been termed as a mere privilege by the court, dependent on conditions imposed by the written law, is now erected into an estate, not to be forfeited or defeated by the absence of the condition which inspired the law, and without which the privilege could not be created, i. e., the marital relation or a dependent family.
Upon the question as to whether the privilege of the homestead continues when the debtor ceases to be the head of a family, the Supreme Court of California, in Revalk v. Kramer, 8 Cal., 66, said : “The leading idea upon which the constitution and statute are both predicated, is the protection of the family. To carry out this intent, the homestead of the head of the family is protected from forced sale. * * * But unless the person is the head of a family, the right of homestead cannot exist. And cannot the same person at one time be the head of a family, and not at another? And if the privilege is an incident to a certain state, aud that state itself ceases, why should not the incident fall with it? As the primary object of the law was the protection of the family, when the family ceases to exist the reason for the privilege is gone; and why should not the privilege itself also cease? As the end contemplated by the law can no longer be attained, why should the means be preserved when they are no longer wanted? As the law will not allow an individual the right of homestead before he becomes the head of a family, why should it allow him the right after he ceases to be such ? The only reason why the law will not allow it in the one case is equally applicable to the other. When an individual ha« not been, or has ceased to be, the head of a family, the law cannot anticipate that he will thereafter become such in either case. When he dees in fact become the head of a family the law protects him for their benefit. He is the representative of the family. But when there is no family to protect will the law defeat the just claims of creditors for the purpose of accomplishing no beneficial end?
It is true the party once had a family, and he also once had protection for that family; but since the family has ceased to exist the protection is not needed. The law is intended to protect individuals while bearing certain relations to each other. When that relation ceases, the cause for the protection is gone. The reason ceasing, the rule ceases. The privilege and responsibility must go together — one is rightly dependent upon the other. When the individual no longer has the care of a family, the law should not still protect him as if he had; he should only be protected as others are who are at present in the same state. The law does not look to his past or future, but to his present condition.”
To the same effect are the cases of Cooper v. Cooper, 24 Ohio St. 488; Gallighan v. Payne, 34 La. An., 1057; Blackwell v. Broughton, 56 Ga., 392-3; Heard v. Downer, 47 Ib., 631; Jackson v. Parrott, 68 Ib., 490; Green v. Marks, 25 Ill., 221.
In Calhoun v. Williams, 32 Gratt., 18, the facts were that the aged father and mother of the debtor lived with him at his home and were dependent upon him. After their death, and while the debtor was still occupying his old home, • he was proceeded against by a creditor and the court refused to allow the exemption, saying it was not the design of the statute to enable a man, who had neither wife nor child nor others dependent on him, to withhold his property from the payment of his debts; that the statute was intended for the benefit of the family.
The cases cited by the court from Illinois, Texas and Tennessee seem to be determined on the peculiar wording of statutes which differ from our • constitutional provisions, and are not therefore authority to sustain the general principle announced by the court in this case.
In Texas the statute provides that the right of homestead shall remain if a constituent of the family remains, and xhe court held that the language included a surviving husband as well as a surviving wife.
At the time of the rendition of the decision in the 97th Ill., supra, the statute of that state extended the exemption to the widower just as to the widow, and the decision turned on the phraseology of the statute.
It is said in Barney v. Leeds, 51 N. H., supra; that that case as well as the Massachusetts cases, are “ predicated upon the idea that the homestead exemption is for the benefit of the debtor as well as the family, and that the California cases above cited went upon the theory that the design of those laws was to protect the family; that the protection of the family from- dependence and want is the object of all homestead laws.” ' ■
We have the authority of this court to sustain the latter view from its earliest declaration upon that subject to Harbison v. Vaughn, sup., determined in 1884.
The Iowa statute puts the question to rest by declaring that “a widow or widower, though without children, shall be deemed the head of the family while continuing to occupy the house used as such at the time of the death of the husband or wife.” The court in this case, under the asserted right to apply the law to new cases which the framers of the constitution did not anticipate or provide for, virtually interpolate this provision into that instrument. A liberal construction should be given to exemption laws to aid them in their humane policy, that is, the protection of the family, but the courts cannot, by construction extend their protecttion to those not named in the terms. Believing that both the better reason and the weiglitof authority sustain this view, I think the judgment of the court below should be reversed.