Allen v. Hanks

• Citation: 136 U.S. 300,34 L.Ed. 414,10 S.Ct. 961
• Parties: ALLEN et al. v. HANKS
• Decision Date: 19 May 1890
• Court: United States Supreme Court

136 U.S. 300

10 S.Ct. 961

34 L.Ed. 414

ALLEN et al. v. HANKS.

May 19, 1890.

Jacob Trieber, for appellants.

J. C. Tappan and J. J. Hornor, for appellee.

HARLAN, J.

This suit involves the title to certain lands in Arkansas, which the appellee, a married woman, claims to constitute her separate estate, and, as such, not liable for the debts of her husband, James M. Hanks.

By the laws of Arkansas in force when the appellee and her husband were married, it was provided (Rev. St. Ark. 1858; Gould's Dig. p. 765, c. 111) that 'any married woman may become seised and possessed of any property, real or personal, by direct bequest, demise, gift, or distribution, in her own right and name, and as of her own property: provided, the same does not come from the husband after coverture,' (section 1;) that, 'before any married woman shall be entitled to the privileges and benefits of the r ovisions of this chapter, she shall cause to be filed in the recorder's office, in the county where she lives, a schedule of the property derived through her, and no property belonging to any married woman shall be exempt from the payment of any debts contracted by her husband previous to the filing of the schedule aforesaid,' (section 7;) and that 'whenever the deed, bequest, grant, decree, or other transfer of property of any kind to any married woman shall expressly set forth that the same is designed to be held exempt from the liabilities of her husband, such property, together with the natural increase thereof, shall be deemed and considered as belonging exclusively to such married woman, under the provisions of this chapter, and shall not be liable to execution or sale for the payment of debts of her husband, whether contracted before or after the accruing of the title of the wife: provided, that no conveyance from any married man to his wife, either directly or indirectly, shall entitle her to any benefits or privileges of this act,' (section 8.)

In 1868 a new constitution was adopted, and among its provisions was one declaring: 'The real and personal property of any female in this state acquired either before or after marriage, whether by gift, grant, inheritance, devise, or otherwise, shall, so long as she may choose, be and remain the separate estate and property of such female, and may be devised or bequeathed by her the same as if she were a feme sole. Laws shall be passed providing for the registration of the wife's separate property, and when so registered and so long as it is not intrusted to the management or control of her husband otherwise than as an agent, it shall not be liable for any of his debts, engagements, or obligations.' Article 12, § 6.

This was followed in 1873 by an act (Gantt's Dig. St. Ark. 1874, p. 756) providing that 'the property, both real and personal, which any married woman now owns, or has had conveyed to her by any person in good faith, and without prejudice to existing creditors, or which she may have acquired as her sole and separate property; that which comes to her by gift, bequest, descent, grant, or conveyance from any person that which she has acquired by her trade, business, labor, or services carried on or performed on her sole or separate account; that which a married woman in this state holds or owns at the time of her marriage; and the rents, issues, and proceeds of all such property,—shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected, and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children by her as his agent,' (section 4193;) that, 'before any married woman shall be entitled to the privileges of this act in respect to property held by her separately as aforesaid, she shall cause her said separate property to be recorded in her name in the county where she lives or has a residence,' (section 4201;) and that 'the property of a woman, whether real or personal, and whether acquired before or after marriage, in her own right, shall not be sold to pay the debts of her husband contracted or damages incurred by him before marriage,' (section 4203.)

By the constitution of Arkansas of 1874, it was declared that 'the real and personal property of any feme covert in this state, acquired either before or after marriage, whether by gift, grant, inheritance, devise, or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed, or conveyed by her the same as if she were a feme sole; and the same shall not be subject to the debts of her husband.' Article 9, § 7.

The present suit depends upon the construction of these statutory and constitutional provisions as applied to certain facts disclosed in this case, in respect to whc h there is no dispute. These facts will now be stated.

James M. Hanks and the appellee were married in the state of Arkansas in the year 1859. During that year a child was born to them, alive, and capable of inheriting. It died in 1862. John F. Hanks, the owner of considerable property, real and personal, in the state of Arkansas, including the lands in dispute, died in 1864; his sole heirs at law being his father, Fleetwood Hanks, and his brother, James M. Hanks the husband of appellee, and his sister, Ann A. Porter, the wife of William Porter. Fleetwood Hanks took a life-interest in the estate left by his son; James M. Hanks and Mrs. Porter inherting subject to that interest. The father died in 1870, whereupon the brother and sister of the decedent became the owners in common of the realty. In 1871 they agreed upon a partition; and James M. Hanks, for the purpose of having the title to his share vested in his wife,—he being then perfectly solvent,—executed January 2, 1871, a deed conveying all his interest in the lands so inherited to Mrs. Porter, his wife joining in it for the purpose of relinquishing her dower. At the same time, Mrs. Porter, her husband joining with her, conveyed to the appellee what was regarded as one-half in value of the lands inherited from John F. Hanks, including those here in controversy. From the date of that deed forward, the lands in dispute have been cultivated by James M. Hanks 'as agent of his wife, and in her name, for her, and not in his own right.' The deed from Porter and wife to Mrs. Hanks was filed for record, and recorded, May 24, 1875, in the county where the lands are situated, and in which the appellee then, and has ever since, resided, and had her home; but 'no other schedule of it, nor other record, nor intention to claim it as her separate property, was ever filed by her.'

On the 14th of October, 1884, the appellants, J. H. Allen, Thomas H. West, and John C. Bush, constituting the firm of Allen, West & Bush, recovered in the court below a judgment against W. L. Nelson and James M. Hanks for $14,645.29, with interest at the rate of 6 per cent. per annum from the above date. The judgment was for a debt contracted in 1881. Execution upon that judgment having been levied on the interest of James M. Hanks in the lands in dispute, and the marshal, Fletcher, having advertised the same to be sold in satisfaction of the execution, the appellee brought the present suit, and seeks a decree perpetually enjoining the sale. The appellants, Allen, West & Bush, answered, insisting that James M. Hanks had an interest in the lands subject to their execution. The decree asked by the appellee was entered, and is now here for review.

The question to be determined is whether the appellee's husband has any interest in these lands that may be seized and sold for the debt due Allen, West & Bush, contracted in 1881.

The contention of the appellants is that, upon the marriage of the appellee and her husband, in 1859, he acquired at onec a right to take the rents and profits of all lands owned by the wife at any time during coverture, unless the deed or devise under which she held them expressly excluded his marital rights, or unless the property was 'scheduled' in conformity with the laws then in force, and, as to the latter, not even then if acquired either directly or indirectly from the husband; that, upon issue born of the marriage in 1859 capable of inheriting, he at once aquired an estate by the curtesy initiate, or an estate for life, which he could convey without his wife's consent, was subject to execution for his debts, and was not, and could not be, affected by any subsequent change in the law. The contention of appellee is that she owned no property at the time of marriage, or at the birth of her child, or when it died; that, before she acquired any lands whatever, the married woman's law was changed by the constitution of 1868 so as to vest in her an absolute title to all property subsequently acquired by her exempt from any estate in the husband that would be subject to seizure by his creditors; that the only limitation upon such right was that she should comply with the acts of the legislature passed in reference thereto; and that when the act of 1873 was passed, and she recorded her deed under its provisions, the real estate acquired by her under the constitution of 1868 was free from liability for the debts and contracts of her husband.

If the case depended entirely upon the statutes in force prior to the adoption of the constitution of 1868, it may be that the law would be for the judgment creditors of the appellee's husband, because the provisions of the Revised Statutes of 1858, (Gould's Dig. c. 111, p. 765,) declaring that any married woman might become seised and possessed of property by direct bequest, devise, gift, or distribution, in her own right, and as of her own property, did not apply where the property came from the husband after coverture, or was conveyed by him to his wife directly or indirectly; and also because the...