plaintiff and Geo. M. Neterer and Margueritte Neterer were defendants. The material facts are as follows: Charley Jones instituted a suit by attachment in the Lawrence circuit court for the Eastern district, against Geo. JONES v. AINELL. (No. 815.) (Supreme Court of Arkansas. April 10, 1916.) 1. JUDGMENT 495(1) - CONCLUSIVENESS PRESUMPTIONS ON COLLATERAL ATTACK. On collateral attack, every presumption M. Neterer and Margueritte Neterer, allegmust be indulged in favor of jurisdiction, and, ing that they were nonresidents of the state unless from the record itself it affirmatively ap; of Arkansas and owed him the sum of $298 pears that facts essential to jurisdiction did not exist, such collateral attack cannot prevail. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 5492, 933; Dec. Dig. 495(1).] 2. VENDOR AND PURCHASER 229(6, 7) BONA FIDE PURCHASERS-ATTACHMENT-LIS PENDENS. and accrued interest. The records show that the attachment suit was commenced on August 31, 1907, and on that day Charley Jones filed an affidavit stating that the defendants were nonresidents of the state. A warning order was also issued on the same day. On the 28th day of February, 1908, a general order of attachment was issued. The record shows that the plaintiff by leave of the court filed an affidavit for attachment Under Kirby's Dig. § 5149, providing for filing of lis pendens notice in actions involving real estate, and under section 5152, making it the duty of the officer levying on real estate to file his certificate in the same manner as lis pendens notice, held, that a bona fide purchaser is not charged with notice of an attachment on March 10, 1908, and the affidavit for atsuit or judgment therein in the absence of a tachment filed on that day appears in the statutory notice. record. The judgment in the attachment [Ed. Note. For other cases, see Vendor and case, among other things, recites that an orPurchaser, Cent. Dig. § 487; Dec. Dig.der of general attachment was issued and 229(6, 7).] 3. VENDOR AND PURCHASER 229(6, 7) CHARACTER OF SUIT AS NOTICE-BONA FIDE PURCHASER. An attachment suit is not an action involving the title to the land attached, and a purchaser in good faith is not required, in the absence of a notice of lis pendens, to take notice of the attachment suit or the judgment rendered therein. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 487; Dec. Dig. 229(6,7).] 4. DEEDS210-CONSIDERATION-PRESUMP TION. The recital in a deed of the payment of consideration is prima facie evidence of the payment of the amount stated. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 635, 636; Dec. Dig. 210.] 5. VENDOR AND PURCHASER 242 BONA FIDE PURCHASERS - NOTICE - BURDEN OF PROOF. Where the complaint in an action to set aside a deed as a cloud upon plaintiff's title alleges good faith of plaintiff in purchasing the land and payment of valuable consideration therefor, the burden is on defendant relying on notice to show that plaintiff purchased with notice of defendant's title. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. 242.] Appeal from Lawrence Chancery Court; Geo. T. Humphries, Chancellor. Action by J. Bruce Ainell against Charles Jones. Judgment for plaintiff, and defendant appeals. Affirmed. W. P. Smith and O. C. Blackford, both of Walnut Ridge, for appellant. W. A. Cunningham, of Walnut Ridge, for appellee. returned showing that the sheriff of Lawrence county had legally attached the land in this suit; the affidavit and bond having been executed and filed. The attachment was sustained, and the land in controversy was ordered to be advertised and sold. Charley Jones, the plaintiff in the attachment suit, became the purchaser at the attachment sale for his debt and costs, and the sheriff issued to him a certificate of purchase. No deed was ever executed to him. The lands were wild and unimproved, and Charley Jones never went into the possession of them. On the 20th day of February, 1911, Margueritte Neterer by warranty deed conveyed the land in question to J. Bruce Ainell. The consideration expressed in the deed was $3,000, which was recited to have been paid by J. Bruce Ainell. The deed was duly acknowledged and filed for record. The chancellor found that no affidavit for attachment was filed as required by law before the attachment was issued, and that the judgment in the attachment suit and the sale thereunder were void because no jurisdiction was acquired by the circuit court. Accordingly, a decree was entered quashing all the proceedings in the attachment case and canceling the same as a cloud upon the title of the plaintiff in the present suit. The defendant Jones has appealed. [1] This is a collateral attack upon the judgment in the attachment case, and every presumption must be indulged in favor of the jurisdiction of the circuit court. Unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of the court did not exist, a collateral attack on the judgment will not prevail. Boyd v. Roane, 49 Ark, 397, 5 S. W. 704; Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S. W. 836. HART, J. J. Bruce Ainell instituted this action in the chancery court against Chas. Jones to set aside and declare void as a cloud upon his title the judgment and subsequent proceedings in an attachment suit instituted in the Lawrence circuit court, Eastern district, wherein Charles Jones was It is the contention of counsel for the deFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fendant that the recital of the judgment in [tion 5152. What purports to be the whole recthe attachment case that an affidavit for attachment had been filed raises the conclusive presumption that it was filed before the writ of attachment was issued, and that, if it should be held that the affidavit contained in the record is a part thereof and of equal verity with the judgment itself, there is a presumption that there was another affidavit filed before the writ of attachment was issued. The affidavit for attachment in the record was filed by leave of the court, and the order of the court permitting it to be filed shows that it was filed subsequently to the date on which the writ of attachment was issued. There is nothing in the affidavit itself, or the order of court allowing it to be filed, tending to show that it was filed as a substitute for a previous affidavit. Under this state of the record, it is contended by counsel for the plaintiff that an affirmative showing is made that the writ of attachment was issued before the affidavit of attachment was filed, and that therefore the judgment of the circuit court in the attachment case was void. We do not deem it necessary to decide this 'perplexing question; for, under the views which we shall hereinafter express, the decree of the chancellor, being correct, should be affirmed, even if an erroneous reason was given therefor. If it be considered that the judgment of the circuit court in the attachment case was valid, still we think the decree should be affirmed. [2, 3] This court tries chancery cases de novo on the record made in the court below. Section 5149 of Kirby's Digest provides in effect that, to render the filing of any suit at law or in equity affecting the title or any lien on real estate constructive notice to a bona fide purchaser of any such real estate, it shall be necessary for the plaintiff to file for record notice of the pendency of the suit as provided by the statute. ord in the attachment suit was filed in the present case, and it shows that no lis pendens was filed as required by section 5152 of Kirby's Digest. Of course, possession of land is notice of whatever right or title the occupant has, but the record shows that no deed was ever executed to Jones by the sheriff, and that Jones never went in the possession of the land. It is true he purchased at the attachment sale before the deed was made to Ainell. For this reason counsel for Jones contended that he is protected under the rule announced in a case note to 10 L. R. A. (N. S.) 443. We do not think the rule contended for by counsel has any application to the facts in the instant case. It is only where the judgment or decree affects the title to the land that it can be said that such judgment or decree ends the litigation, and that a purchaser thereafter cannot be regarded a pendente lite purchaser. The title to the land was not involved in the attachment suit, and the judgment rendered therein did not determine the title thereto nor in any wise affect it. No lis pendens notice was filed in the attachment suit as required by the statute, and Ainell was not. required to take notice of anything that occurred during the pendency of the attachment suit. As we have just seen, the judgment did not terminate the suit because the title to the land was not affected thereby. The purchaser at the attachment sale could not acquire any rights against a bona fide purchaser for value without notice until a deed was executed to him by the sheriff and placed of record, or until he had taken possession of the land. This brings us to the question of whether or not the plaintiff Ainell is a bona fide purchaser. A warranty deed from Margueritte Neterer to him was introduced in evidence. The consideration expressed in the deed was $3,000 which was recited to have been paid to Ainell. Section 5152, the section that is applicable [4] The recital in the deed of the payment of the consideration of $3,000 by Ainell was to the present case, reads as follows: "It shall be the duty of the sheriff, United prima facie evidence that he paid that States marshal or other officer levying upon amount for the land. Morton v. Morton, 82 any real estate under and by virtue of any Ark. 492, 102 S. W. 213; Dodwell v. Mound writ of attachment, execution or other process, City Saw Mill Co., 90 Ark. 287, 119 S. W. to file with the recorder of deeds of the county in which the real estate is situated a certificate 262; Carwell v. Dennis, 101 Ark. 603, 143 of such levy or seizure, together with a correct and full description of the real estate levied upon or seized by him; and it shall be the duty of the recorder of deeds to index and record the same in the same manner as hereinbefore provided for notice of lis pendens." S. W. 135. [5] The lands in suit were wild and unim proved, and that was an adequate price to pay for them. The plaintiff in his complaint alleged that he was a bona fide purchaser of the land, and it is shown that he paid a valuable consideration for it. The burden of showing that he purchased with notice was on the party alleging it or who relies on the notice to defeat the claim of bona fide purchaser. Osceola Land Co. v. Chicago Mill & Lbr. Co., 84 Ark. 1, 103 S. W. 609. In construing section 5149, the court held that the common-law and equity rule of lis pendens have been abrogated in this state by statute, and that, since the passage of the statute, a suit affecting the title or any lien on real estate is not lis pendens until notice of the pendency of the action is filed in accordance with the statute. Hudgins v. Schultice, 118 Ark. 139, 175 S. W. 526; Henry den thus imposed upon him. Wrape Co. v. Cox, 183 S. W. 955. The rule It follows that the decree of the chancelthere applied is equally appropriate to sec-lor was correct, and it will be affirmed. The defendant did not discharge the bur BROOKS v. GOODWIN. (No. 389.) (Supreme Court of Arkansas. May 8, 1916.) 1. HOMESTEAD 162(1)—"ABANDONMENT”— TEMPORARY ABSENCE. The temporary absence of one claiming a homestead right did not operate as an abandonment of such right. [Ed. Note. For other cases, see Homestead, Cent. Dig. §§ 315, 318, 319; Dec. Dig. 162 (1). For other definitions. see Words and Phrases, First and Second Series, Abandonment.] 2. REMAINDERS 9-"MERGER"-JOINT OCCUPANCY OF LIFE ESTATE. Where a father, owning a life estate in lands and a son owning a fee-simple estate in land subject to such life estate, agreed that the lands be occupied and treated as partnership lands and the son entered such land, cleared and improved it, though the life tenant never made any written relinquishment of his estate and continued to assert such interest in the land, there was no merger of the life estate; as while the remainderman was in occupancy he was subject to the life estate. [Ed. Note. For other cases, see Remainders, Cent. Dig. § 6; Dec. Dig. 9. an execution against him subject to the life estate of his father. But although the land was so owned there was an agreement that the lands be occupied and treated as partnership lands and that appellee, acting under such understanding and agreement with his father, entered on said lands and cleared and improved them. But it was also recited in the agreed statement that the life tenant had never made any written relinquishment of his life estate to appellee, but continued to assert that interest in the land. [1] There was evidence that appellee was not residing on the land at the time of the levy of the execution, but was a resident of another county, where he was served with process. But the court no doubt accepted his explanation that his absence was only temporary and that he had not, therefore, abandoned his right of homestead if he had ever acquired it, and we cannot say that the evidence does not support this finding. [2] We think no showing is made that the life estate had become merged by the agreement for joint occupancy, and while the remainderman was enjoying the joint occupan3. HOMESTEAD 82-PROPERTY CONSTITUT-cy he was doing so subject to the life estate ING HOMESTEAD-LIFE ESTATE. For other definitions. see Words and Phrases, First and Second Series, Merger.] A life tenant in possession has a homestead interest in the land, which he may claim as exempt against any of his creditors seeking to subject the land to the payment of his debts. [Ed. Note.-For other cases, see Homestead, Cent. Dig. § 119; Dec. Dig. 82. For other definitions, see Words and Phrases. First and Second Series, Homestead.] 4. HOMESTEAD 81-PROPERTY CONSTITUTING HOMESTEAD-REMAINDERMAN'S POSSES SION. Under Const. art. 9, § 4, conferring a homestead outside of any city, town, or village owned and occupied as a residence, etc., the owner of a fee simple in lands who, under agreement with his father, had entered upon the land and improved it, though the life tenant had never made any written relinquishment of his estate and continued to assert such interest in the land, having no present right of occupancy which was the right of the life tenant alone, had no homestead interest which could be set up against a sale under an execution against him, subject to the life estate. [Ed. Note-For other cases, see Homestead, Cent. Dig. §§ 114-118; Dec. Dig. 81.] Appeal from Circuit Court, Randolph County; J. B. Baker, Judge. of his father. [3, 4] The father, as a life tenant in possession, therefore, had a homestead interest in the land which he might have claimed as exempt against any of his creditors who sought to subject the land to the payment of his debts. White Sewing Machine Co. v. Wooster, 66 Ark. 382, 50 S. W. 1000, 74 Am. St. Rep. 100. The question to be decided is, whether the remainderman also had this right. In 21 Cyc. p. 503, under the title of "Homestead," it is said: in land sufficient to carry with it the privilege "Future or Contingent Estates. The interest of exemption must be such as involves a present right of occupancy. Future estates, therefore, whether vested or contingent, will not support the claim; yet when the particular estate is determined, and the remainderman is entitled to immediate possession, he may claim his interest has not been sold in the meantime by homestead in the premises, if his contingent his creditors." And, under the same title in 15 A. & E. Enc. of Law (2d Ed.) p. 556, the law is stated as follows: Claim of homestead exemption by F. H. Goodwin in proceeding for execution sale by J. T. Brooks. Judgment for claimant, re- "Possessory Interest Necessary-a. In Genfusing to quash a supersedeas, and for costs, eral. To entitle a debtor to a homestead exand the execution creditor appeals. Revers-emption he must, at least, have a possessory interest in the land claimed. There must be at ed, and cause remanded, with direction to least a present right of occupancy. quash the supersedeas ordered to issue. Campbell, Pope & Spikes, of Pocahontas, for appellant. "b. Remainder or Reversion.-A homestead cannot exist in a remainder or reversion, since in such case there is no present right of occupancy. But it has been held that a remainderman may claim a homestead after determination of the particular estate, as against creditors who have failed to sell his interest on execution before determination of the particular estate." SMITH, J. This cause was tried in the court below upon an agreed statement of facts, from which it appears that appellee was the owner of a fee-simple estate in the lands sought to be subjected to sale under p. 488, it is said: In Waples on Homestead and Exemption, "The fee cannot be sold under execution so as to leave the homestead unsold when home stead means exempt property." The homestead here sought to be asserted is conferred by section 4 of article 9 of the Constitution. Its language is: "The homestead outside of any city, town or village, owned and occupied as a residence, shall consist of not exceeding, etc." In Modern American Law, vol. 5, p. 297, the law on the subject is stated as follows: "384. Estate to Support Homestead.-A homestead right may commonly be claimed in any kind of an estate, whether in fee, or for life, It is apparent that the occupancy must or any other interest liable to seizure for debts, be accompanied by a present claim of a right provided the interest is a present right of oc- to occupy, and one cannot occupy an estate in cupancy. For example, there can be no home- remainder as a residence. The owner of stead in a remainder or a reversion, although there are situations where the remainderman may claim a homestead after the close of the particular estate, if the creditors have failed to complete their levy by sale. A homestead may be claimed in a life estate as the life tenant is the owner within the meaning of the law, and the homestead estate terminates with his life estate. It follows from this that the homestead may be claimed by a tenant by curtesy, and also by a widow having a dower interest." Numerous cases on the subject will be found cited in the text quoted from. In Roach v. Dance, 80 S. W. 1097, the facts were that Roach, the testator, devised lands to his wife for life, remainder to his children. Subsequent to Roach's death the widow and children resided together upon the land and were so residing when the creditors of one of the sons of the testator sought to subject this son's interest as remainderman to sale under execution. The remainderman claimed the land as his homestead and alleged that he resided with his wife and children upon the land with his mother at the time of the levy, and that his interest being of less value than that allowed by law was exempt as a homestead. The court said in part: a particular estate alone has that present right of occupancy essential to impress the homestead character upon land. The judgment of the court below will therefore be reversed, and the cause remanded, with directions to quash the supersedeas which had been ordered issued. WATSON v. HILL et al. (No. 383.) (Supreme Court of Arkansas. May 8, 1916.) 1. DEEDS 56(1)-REQUISITES-"DELIVERY." There is a consummated delivery of a deed right of recall to a grantee or some third person when it has passed from the grantor without for his use. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 117, 121, 122; Dec. Dig. 56(1). For other definitions, see Words and Phrases, First and Second Series, Delivery.] 2. DEEDS OF EVIDENCE. 208(1)-DELIVERY-SUFFICIENCY In a widow's action to cancel deeds executed by decedent and by herself, and to have ed to the children of her deceased husband, signhomestead and dower awarded her in the lands described therein, evidence held to warrant a finding that the decedent parted with all control over the deeds with intention to pass title to the lands, and that there was a delivery. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 625, 630; Dec. Dig. 208(1).j Appeal from Clay Chancery Court; Chas. D. Frierson, Chancellor. "It was decided in Robinson v. Smithey, 80 Ky. 636, that a party holding the title to a tract of land for life, with remainder to her children, and in the occupancy of the land, was entitled to a homestead therein as against her creditors. In Merrifield, etc., v. Merrifield's Assignee, 82 Ky. 526, it was further held that the life tenant and remainderman could not have a homestead in the same tract of land at the same Suit by Maggie Watson against Mary time. In the opinion in that case this court said: "This court has never gone so far as to Hill and others to cancel certain deeds, and decide that both the widow and remainderman to establish bomestead and dower in the at the same time can have a homestead in the lands described therein. Decree for defendsame tract of land. Nor do we think the stat-ants, dismissing the complaint for want of ute can be so applied and extended. The rule of the homestead exemption is that the debtor equity, and plaintiff appeals. Affirmed. G. B. Oliver, of Corning, for appellant. In the case of Davis v. Brown (Tenn. Ch. App.) 62 S. W. 381, the syllabus is as follows: "A remainderman who is permitted to occupy land with a life tenant under a parol surrender of her interest is not in possession in his own right, since the parol surrender does not merge life estate and remainder, nor bind the life tenant; and hence he is not entitled to claim a homestead in the land as against his execution creditor." HART, J. Maggie Watson instituted this action in the chancery court against Mary Hill and others to cancel certain deeds executed to them by her husband and have homestead and dower awarded her in the lands described in the deeds. On the 15th day of March, 1915, Samuel Watson died in Clay county, Ark., leaving surviving him his widow, Maggie Watson, and Mary Hill and four other children by a former wife. In October, 1914, Samuel Watson and Maggie Watson were married. At that time he owned about 200 acres of land, including his homestead, in Clay County, Ark. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes so far as you knew? A. Yes, sir. Q. And the the children after his death? A. He did not inonly duty of the bank was delivering them to struct me about that; about what was to be done with them. I supposed so. I had nothing to do with that. Mr. Henry asked me about that, and I said I had nothing to do with that. It was the purpose of making the deeds. He talked with me freely about it." Maggie Watson also had children by her for- | yours and Mr. Watson's connection with them mer husband. She disagreed with her husband because he ordered her children around and left him about two weeks after they were married. Mr. Watson was in ill health at the time and sent for a married daughter to come and live with him. His ill health continued and his wife also came back and stayed with him a part of the time. On the 3d day of March, 1915, Samuel Watson executed five deeds conveying to each of his children 40 acres of land. His wife joined with him in the execution of the deeds. By direction of Mr. Watson, the justice of the peace, who wrote the deeds and took the acknowledgments thereto, delivered them to the cashier of a bank in Clay county. Watson died twelve days after executing the deeds. After his death his children went to the cashier of the bank and demanded the deeds. The deeds were delivered to them and by them filed for record. Subsequently the widow of Samuel Watson instituted this action to cancel the deeds, and to have set aside to her her dower and homestead in said lands. The chancellor found for the defendants, and it was decreed that the complaint of the plaintiff be dismissed for want of equity. The plaintiff has appealed. The correctness of the decision of the chancellor depends upon whether or not there was a delivery of the deeds. [1] It is well settled that there is a consummated delivery of a deed when it has passed from the grantor, without right of recall, to the grantee or some third person for his use. Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147, Ann. Cas. 1915C, 385. [2] In the present case, H. H. Williams, the justice of the peace, testified: I knew Samuel Watson for 33 years prior to his death, and lived near him. He owned 200 acres of land, and lived on part of the land. I prepared the deeds and took the acknowledgments thereto at the request of Mr. Watson. He deeded a 40-acre tract to each of his children. His wife understood all about the transaction. Mr. Watson directed me to deliver the deeds to the Bank of Corning. I put the deeds in an envelope and delivered them to the bank and took a receipt therefor. The receipt read: "Received of H. H. Williams one sealed envelope said to contain valuable papers, the property of Samuel Watson, or belonging to Samuel Watson one of the two." I took this receipt on my own motion. Later I handed it to Watson, at the time telling him that it was a receipt for the deeds. He called one of his daughters and told her to put it in his pocket book with other papers back of the stove. She did so. He was several times asked if Mr. Watson had not directed him to put the deeds in the bank for his children to be delivered to them after his death. He replied that Wat son did not say that; that Mr. Henry, the cashier of the bank, had asked him the same question. We quote from his testimony as follows: "Q. When you brought the deeds to the Bank Mrs. Williams testified that she had a conversation with Mrs. Watson after she had signed the deeds. She said that Mrs. Watson told her that she was willing to sign the deeds because she did not live with her husband very long and had not helped him to make anything; that therefore she did not feel like she was entitled to the land, but thought the children ought to have it. Two of Mr. Watson's children also testified that they heard their stepmother ask their father to make the deeds, and said she stated that she would sign them. Another daughter stated that Mrs. Watson told her that she had signed the deeds, and that she did not want the land that their father and mother had worked and paid for. Another witness stated that Mr. Watson told them after he had executed the deeds that he had made a mistake and had given the wrong 40's to two of his children, but that they could correct this mistake. It sometimes happens, as in Battle v. Anders, 100 Ark. 427, 140 S. W. 593, that a grantor makes a voluntary conveyance of his property and holds the deed under circumstances showing that he had no intention that it should be effective during his lifetime, but holds it under a mistaken belief that the deed will operate in lieu of a will. Such, however, is not the case here. The facts of this case brings it within the rule announced in Fine v. Lasater, supra. We think the chancellor was warranted in finding that the grantor parted with all control over the deeds with intention to pass title to the lands, and that there was a delivery of the deeds. Delivery is largely a question of intention. Here it was shown that it was the intention of the grantor to give his lands to his children. His wife was consulted about the matter and agreed to join with him in the execution of the deeds. It is true the justice of the peace stated that Watson gave him no other directions than to deliver the deeds to the Bank of Corning, but he does state that Watson had talked freely to him about making the deeds, and that the purpose of executing them was to pass the title in the lands to his children. The other evidence tends to corroborate this. Watson stated that he had made a mistake in two of the deeds, that he had given to one of his children land that he had in tended to give to another, but stated that his children could correct that. This was a circumstance tending to show that he realized that he had vested the title to the lands in his children when he executed the |