Erwin v. Puryear

• Decision Date: 31 March 1888
• Citation: 7 S.W. 449,50 Ark. 356
• Parties: ERWIN v. PURYEAR
• Court: Arkansas Supreme Court

7 S.W. 449

50 Ark. 356

ERWIN v. PURYEAR

Supreme Court of Arkansas

March 31, 1888

APPEAL from Craighead Circuit Court, J. E. RIDDICK, Judge.

Affirm.

E. F Brown, for appellee.

1. The conveyance was made prior to the Constitution of 1874, and hence the husband could convey his estate by curtesy. 38 Ark 91; 39 Id. 434.

2. The wife failed to schedule as provided by law. Mansf. Dig., sec 4636.

S. S. Wassell, for appellant.

1. No title passed by the joining of the wife in the deed. She only acknowledged relinquishment of dower, and she had no dower. The conveyance as to her was void. 43 Ark. 156; 33 Id, 432.

2. The power of the husband, under the common law, to convey his wife's property during coverture and without her concurrence under his tenancy by curtesy, was abolished by art. 9, sec. 7, Const. of 1874, and Act of April 28, 1873. Neeley v. Lancaster 47 Ark.; Const. of 1868, art. 12, sec. 6.

3. A failure to schedule did not deprive her of the privileges, etc., of Art. 12, sec. 6, Const. of 1868. The registration is only required with reference to the liability of the wife's separate property for her husband's debts.

OPINION

COCKRILL, C. J.

At the time of the intermarriage of the appellants, in 1866, the wife was seized in fee of the land in controversy. The conveyance by which she acquired the title did not exclude the common law marital rights. In May, 1873, the husband sold the land, the wife joining in the deed apparently for the purpose of relinquishing dower. This action of ejectment was instituted in 1886, by the husband and wife against the purchaser, from their vendee to recover the land. There was a verdict and judgment for the defendant.

It is conceded in the argument that the wife did not convey her estate, and her counsel argues that the husband had none to convey, because the constitution of 1868 and the act of April 28th, 1873, made the land her separate property, and excluded the common law marital interest. The case of Neelly v Lancaster, 47 Ark. 175, 1 S.W. 66, is relied on to sustain the wife's right to recover. But that case differs from this, as Shryock v. Cannon, 39 Ark. 434, does from Criscoe v. Hambrick, 47 Ark. 235, 1 S.W. 150. That is, the marital rights having attached before the passage of the act of 1873 and the adoption of the constitution of 1868, the subsequent laws did not rob the husband of his vested interest. It was so held in the cases above cited and...