Branch v. Polk

• Decision Date: 14 December 1895
• Citation: 33 S.W. 424
• Parties: BRANCH v. POLK et al.
• Court: Arkansas Supreme Court

33 S.W. 424

BRANCH v. POLK et al.

Supreme Court of Arkansas.

December 14, 1895.

Appeal from circuit court, Phillips county; Grant Green, Jr., Judge.

Action by Mary P. Branch against Sallie M. Polk and others. From a decree for defendants, complainant appeals. Modified.

Mary P. Branch brought suit in the Phillips circuit court against Sallie M. Polk and the heirs of Lucius E. Polk, Sr. For cause of action she alleged that Lucius E. Polk, Sr., executed to her, on the 1st day of March, 1891, several promissory notes, amounting in the aggregate to between $6,000 and $7,000; that to secure the payment of these notes he executed to her a mortgage on an undivided half interest in certain lands in Phillips county, Ark.; that the defendant Sallie M. Polk, at that time the wife of said Lucius E. Polk, in order to further secure the payment of said notes, did, on said 1st day of March, 1891, also execute a mortgage upon an undivided half interest in said lands owned by her; that Lucius E. Polk had died since the execution of the notes and mortgage; and that said notes were due and unpaid. She prayed that the mortgage be foreclosed, etc. Mrs. Polk filed her separate answer to the complaint, wherein she admits the execution of the notes and mortgage as alleged, that at the time of the execution of the same she was the wife of L. E. Polk, and that he has since died, and that said notes are past due and unpaid; but, to quote the language of the answer, "she denies that the deed of trust so executed by the said husband and delivered to the said plaintiff is a lien upon said lands described in said complaint, or an undivided half interest in the same, or upon any part, or any interest therein, or that the deed of trust so executed by herself and delivered to said plaintiff is a lien upon said lands, or any interest therein, or any part thereof, because she says that the sole and only title which she or her said husband had or held to said land or any part thereof was the title derived through a deed executed by Clarence Quarles, as commissioner in chancery of the circuit court of Phillips county, Ark., dated the 10th day of December, 1877, wherein and whereby he conveyed the whole of said several tracts of land to her said husband and herself. * * * And so she says that, for the reasons aforesaid, said mortgages or deeds of trust, executed as aforesaid by herself and husband, are no lien upon the said hereinbefore described lands." There was a demurrer to this paragraph of the answer, which was overruled by the court. Plaintiff electing to stand on her complaint and demurrer, the complaint was dismissed, and plaintiff appealed.

Tappan & Porter and Rose, Hemingway & Rose, for appellant. John J. & E. C. Hornor, for appellees.

RIDDICK, J. (after stating the facts).

The lands upon which appellant claims a lien were held by Lucius E. Polk and his wife, Sallie M. Polk, under a joint conveyance executed to them by Clarence Quarles, commissioner. This joint conveyance to husband and wife vested in them an estate in entirety. Robinson v. Eagle, 29 Ark. 202; Kline v. Ragland, 47 Ark. 116, 14 S. W. 474; Den v. Hardenbergh, 18 Am. Dec. 377; Bertles v. Nunan, 92 N. Y. 152. After receiving this conveyance, each of the grantees gave to Mary P. Branch a mortgage on an undivided half interest in said land to secure notes executed to her by Lucius E. Polk. These mortgages were executed at different places and at different times. The one by Lucius E. Polk was executed on the 4th day of April, 1892, and his wife executed one on the 31st day of May, 1892. Neither of them joined in the mortgage executed by the other. Now, the right of survivorship is a distinctive characteristic of an estate of entirety, and neither of the tenants holding by the entireties can by a separate deed affect the right of survivorship existing in the other. Ames v. Norman, 4 Sneed, 683; Den v. Hardenbergh, 18 Am. Dec. 371, and note; 3 Kerr Real Prop. § 1975. In order to convey land held in entirety, the husband and wife must convey by a joint deed, or the deeds, if separate, must purport to convey the entire estate. Neither of the mortgages set up by the appellant purport to convey more than an undivided half interest in the land. It is contended by appellant that these two mortgages, being executed for the same purpose, must be taken and construed as one deed. If this be conceded as correct, it would not strengthen the position of appellant, for it would still be a deed conveying an undivided half interest only. When persons owning lands as tenants in common each convey an undivided half interest therein, they have conveyed the title to the whole, for neither of them held more than an undivided half interest, and the deed of each conveys his entire interest; but the entire estate is vested in each of the tenants by the entireties, for they hold, not by moieties, but by entireties, and a conveyance of an undivided half interest by one tenant does not purport to convey his whole interest. The deed of the husband can have no effect after his death. When that happened, Mrs. Polk became the sole owner, his interest passing to her by right of survivorship. If appellant has any lien upon Mrs. Polk's land, it must be by force of her own deed, for she did not join in the deed of her husband, and is not affected by it. As the mortgage executed by Mrs. Polk only purported to convey an undivided half interest in the land, we think it clear that in no event can appellant claim a lien beyond this undivided half interest.

But the most serious question for us to determine is whether Mrs. Polk, during coverture, had the power by a separate deed to mortgage her interest in the lands held by herself and husband as tenants of the entirety. Whether a wife may in this state convey an interest held by her as such a tenant, as she may her interest in other real property, has not been determined by this court. The question decided in Robinson v. Eagle, supra, was that estates of entirety were not abolished by the constitution of 1868. This ruling was approved in Kline v. Ragland, 47 Ark. 116, 14 S. W. 474. In neither of those cases was any question concerning the power of the wife to convey her interest in such an estate by a separate deed considered by the court. At common law the husband had, during marriage, the exclusive control of such...