dissenting. I do not agree that the pleadings did not encompass an issue as to the value of the homestead. The homestead right was asserted by answer as a defense to appellant’s action for partition. Having been asserted in this manner, no responsive pleading could have been filed by appellant. Every possible infirmity of the claim of homestead was put in issue without any pleading on appellant’s part. Norton v. Hindsley, 245 Ark. 966, 435 S. W. 2d 788.
The only evidence offered as to value of the property related to its value on the date of the trial, but appellee Ruth Edgar cannot benefit by a deficiency in the proof on this issue. No evidence was offered by her on the subject, of value. Appellant had made a prima facie case for partition. The burden was upon the claimant to establish the homestead right and its extent and value. Pace v. Robbins, 67 Ark. 232, 54 S. W. 213. See also Hatcher v. Wasson, 191 Ark. 765, 87 S. W. 2d 578 and Barnhart v. Gorman, 131 Ark. 116, 198 S. W. 880, where the homestead right was asserted as a defense.
I would reverse the decree and remand the cause for partition.
Brown, Jf., joins in this dissent.