Criscoe v. Hambrick

• Decision Date: 26 June 1886
• Citation: 1 S.W. 150,47 Ark. 235
• Parties: CRISCOE v. HAMBRICK
• Court: Arkansas Supreme Court

1 S.W. 150

47 Ark. 235

CRISCOE v. HAMBRICK

Supreme Court of Arkansas

June 26, 1886

APPEAL from Cross Circuit Court, Hon. W. H. CATE, Circuit Judge.

Judgment affirmed.

Geo. H Sanders for Appellant.

It is immaterial whether Mrs. Hays was married before or after the adoption of the constitution of 1874, or whether she inherited the land in 1873 as alleged in the complaint.

The Constitution of 1874, Sec. 7, Art. 10, says: "The property of any femme covert in this state, acquired either before or after marriage," etc.

The case of Shryock v. Cannon, 39 Ark. 434, has been overruled in principle by Stone v. Stone, 43 Ark p., 160; Donohue v. Mills, 41 Ark. 421.

Any defects of acknowledgment are cured by Act March 8, 1883, and March 14, 1883; Johnson v. Richardson, 44 Ark. 365; Green v. Abraham, 43 Ark. 422.

The question involved was a question of law upon the construction of the deed, and no motion for new trial was necessary. 26 Ark. 662; 39 Id., 258; 43 Id., 398.

N. W Norton for Appellee.

1. The acknowledgment of Mrs. Hays is fatally defective. 39 Ark. 434.

2. The curing acts cannot validate the acknowledgments of married women. 39 Ark. 124; Wood's Retroactive Laws, pp. 261-2.

3. Appellant must first establish his title at law, before he can bring suit for partition. The answer denied his title, 44 Ark. 334, and he was not in possession.

OPINION

SMITH, J.

In the year 1873, Samuel Hambrick, of Cross county, died intestate, seized and possessed of 400 acres of land and leaving him surviving a widow and eight heirs at law. One of these heirs, Sarah C. Hambrick, was married in September, 1874, to J. H. Hays. And in 1875 Hays and his wife conveyed all their right, title, interest and claim in and to these lands to a trustee, as security for the payment of a debt which Hays owed to G. W. Criscoe. The deed was duly acknowledged by Hays; but in regard to the wife, the officer before whom the acknowledgment was taken only certifies that she, in the absence of her husband, signed the deed and relinquished her dower in the lands, of her own free will and without compulsion, etc.; omitting the customary words "for the purposes therein set forth."

Pursuant to a power of sale contained in the deed of trust, the trustee, in 1882, after default in the payment of the secured debt, sold and conveyed the trust property to Criscoe, the beneficiary, who afterwards exhibited in the circuit court his petition for the partition of the premises. He made the widow and heirs of the deceased intestate parties defendant, except Mrs. Hays, whose share he claimed to have acquired by purchase at the trust sale. The petition stated that from the death of Hambrick to the institution of this suit, his widow had continued to reside upon the lands, with some or all of Hambrick's heirs.

The answer of the widow denied the petitioner's title, but prayed for an allotment of her dower, in case partition was decreed. Mrs. Hays also intervened for her interest, alleging that she was in possession and that she was not bound by the trust deed and sale thereunder. And the court decreed that Criscoe had no title and dismissed his petition.

The action of the court evidently proceeded upon the notion that Mrs. Hays was still the owner of her former interest, notwithstanding the execution of the trust deed and its subsequent foreclosure by advertisement and sale; and that the certificate of acknowledgment was fatally defective, as it showed only a renunciation of dower in the wife's own lands, and did not in other respects conform to the requirements of the statute.

Before the adoption of the present constitution, which authorizes a married woman to convey her separate estate the same as if she were single, her acknowledgment of the instrument of conveyance, before some one of the officers designated by law to take it, was essential to the operation of her grant. This is no longer the case, at least in the transfer of her separate statutory estate. Acknowledgment is now requisite only for purposes of registration and notice. As between the parties and all others, except purchasers or incumbrancers without notice, the deed is good without it. The difference between the former law and the present law on this subject may be seen by a comparison of the cases of McGehee v. McKenzie, 43 Ark. 156, and Stone v. Stone, 43 Ark. 160. See also Roberts v. Wilcoxson & Rose, 36 Ark. 355; Donahue v. Mills, 41 Ark. 421; Bryan v. Winburn, 43 Ark. 28; Simms v. Hervey, 19 Iowa 273, per Dillon J.

The court below may have been misled, as Mrs. Hays' counsel certainly has been misled, by the case of Shryock v Cannon, 39 Ark. 434. But, there, although the conveyance by the married woman was made in 1878, yet the land had been acquired by her in 1867, after her marriage, and her husband had a vested interest which could not be divested by legislation. Consequently it was not her separate property; and Sec. 7, Art. 9, ...