(dissenting.) I dissent from the opinion of the majority of the court in holding that Mrs. Nancy Wilks was entitled to hold 25 y2 acres of land as part of her husband’s homestead, in addition to the 133acres decreed by the chancellor. The whole tract had been conveyed by the debtor, Thomas Wilks, to his wife in an attempt to place it beyond the reach of his creditors. The 133^-acre tract had formerly been occupied as the homestead, and had never been abandoned, though the owner had not resided thereon for many years. During his absence from the homestead, which, thotigh long continued, is shown to have been only temporary, and with intention to return, he acquired title to a contiguous tract of 69 acres, which was also conveyed to his wife with the intent to defraud his creditors. With his deposition in this cause, Wilks files a plat of the 133^ acres embracing his original homestead, and 25)^ acres of the subsequent 69-acre purchase, claiming it as his homestead, and the majority of this court hold that the claim should be sustained.
The right of a grantee in a fraudulent conveyance of the homestead to hold against creditors proceeds upon the theory that, the land being exempt, the creditors have no cause for complaint. Turner v. Vaughan, 33 Ark. 454; Bogan v. Cleveland, 52 Ark. 101; Stanley v. Snyder, 43 Ark. 429; Pipkin v. Williams, 57 Ark. 242.
It is sustained, not because of any right in the debtor at the time it is asserted, for he has parted with his title by the fraudulent conveyance, but for the sole reason that at the time of the conveyance the land has been fully impressed with the homestead character, so as to be exempt. In other words, the rights of the parties are fixed with reference entirely to the conditions which existed at the time of the alleged fraudulent conveyance; and if the land be exempt at that time, no degree of fraud will impair the validity of the conveyance. In this case, the 25^ acres claimed as a part of the homestead were never impressed in any manner with the homestead character. 3. he purchase of it as property contiguous to a homestead not then resided upon did not serve that purpose. Whilst the intention to return to a homestead from which the owner is temporarily absent prevents the working of an abandonment of the homestead claim, it does not amount to the impressment of the homestead character upon contiguous land acquired since the removal from the homestead and never actually occupied. The constructive continuity of possession of the homestead is a fiction of the law which does not draw to it .such occupancy of subsequently acquired contiguous lands as to amount to an impressment as a part of the homestead. An intention to occupy lands as a homestead is not sufficient to impress it with that character. It must have been so impressed at the time that specific rights and liens of creditors attached. Williams v. Dorris, 31 Ark. 466; Patrick v. Baxter, 42 Ark. 175; Tillar v. Bass, 57 Ark. 179.
The act of 1887, p. 90 (Sand. & H. Dig. § 3714), provides that when “the debtor does not reside on his homestead, and is the owner of more land than he is entitled to hold as a homestead, he or his wife, as the case may be, shall select the same before sale.” The sale mentioned in the statute has reference particularly to a sale under execution against the debtor when he has not parted with the title to the homestead, but it illustrates the purpose of our law to require the debtor in apt time to make a selection of the homestead boundaries, where he owns more land than allowed as exempt, and he does not reside thereon. Applying this reasoning to the facts of the case, the court looking to the time when the alleged fraudulent conveyance was made to determine the homestead right, we find that the debtor at that time had made no claim -to the 2SJ^-acre tract as a part of his homestead, either by actual impressment or by any other legal mode of selection. When this suit was commenced to set aside the fraudulent conveyance of these and other lands, the debtor did not reside, and had not for years resided, upon the 133^2-acre tract, and had never resided upon the 69-acre tract, out of which his wife seeks to claim 2^/2 acres as exempt.
I think that the decree of the chancellor should be affirmed in this as well as in all other respects.