Harbour v. Harbour

• Decision Date: 08 April 1912
• Citation: 146 S.W. 867
• Parties: HARBOUR v. HARBOUR.
• Court: Arkansas Supreme Court

146 S.W. 867

HARBOUR v. HARBOUR.

Supreme Court of Arkansas.

April 8, 1912.

Appeal from Ouachita Chancery Court; John E. Martineau, Chancellor.

Suit by J. H. S. Harbour against Emily E. Harbour for a divorce and for the recovery of real estate conveyed by plaintiff to defendant. From a decree granting a divorce, setting aside conveyance, and investing each party to an undivided half interest in the property, both parties appeal. Affirmed.

The appellee sued for a divorce, alleging as grounds therefor cruel and inhuman treatment by appellant, such as to endanger his life, and adultery; that he was possessed of property at the time of the marriage, in 1890, from which he realized about $10,000, and from that and other properties accumulated afterwards, about $17,000 in all; that there were two children born to this marriage, a girl 14, and a boy 11, years of age, both living with their mother in the town of Bearden, Ouachita county; that he has great affection for and confidence in his wife, and was much subject to her influence on that account; that she began importuning him, and systematically continued such importuning for three or four years before the separation, until she finally drove him from home, to convey to her certain property and give to her certain moneys, assuring him all the time that such conveyances made and moneys turned over to her would still remain for the common benefit of the family, subject to his control, and for the benefit of both during his life, and that her sole desire in securing the property and money in her own name was that she and their children might be provided for in case of his death, to the exclusion of his other children by former wives, who had already been provided for by him; that, having such absolute confidence in and affection for his wife, he was imposed upon and yielded to such importunities, and conveyed to her certain lands and delivered to her certain moneys; that she all the time had no such affection as she professed for him, and simulated it that she might the more easily secure acquiescence on his part and procure the conveyances and property that she had desired, expecting thereafter to rid herself of him, after despoiling him of his property; that when she secured the final conveyance of the lots at Bearden, the last home place, she drove him from home, in fear of his life, and leaving him, of all the money and property he had accumulated, in his old age with but about $1,500; that she secured the property by fraud and undue influence and false representation of affection that was only feigned and simulated. Prayer was for divorce; that the property be restored to him; and that he be given the custody of their two children.

The answer admitted the marriage; denied every allegation of any cruel or inhuman treatment, or that any of the property conveyed to her was conveyed with the understanding that her husband should retain control, ownership, or management thereof, or that it should be held by her for their joint benefit, or the benefit of the family, or that his intention at the time of the conveyance thereof was other than to transfer same to her as a gift or advancement, and that she should have the absolute title thereto, as shown by the deeds of conveyance; denied the allegations of adultery and improper or immoral conduct on her part, and, by way of cross-bill, asked for a divorce from appellee because of such indignities offered to her as rendered her condition intolerable, and on account of adultery committed by him with several women, naming them, prayed for a dismissal of the complaint, and that she be granted an absolute divorce and decreed the custody of the children.

The court granted a divorce to appellee upon his complaint, decreed that appellant have the custody of the minor son until its further order, upon condition that he should not be taken without the state, and that appellee should at all reasonable times be allowed the privilege of seeing him, without interference by appellant; that the deed to appellant for the Calhoun county lands and the two deeds from appellee, of date June 25, 1909, conveying certain lots and other lands in the town of Bearden, be canceled, and invested appellee with an undivided one-half interest in certain lots in the city of Ft. Smith, and that each of the parties are entitled to a one-half undivided interest in all the lands that were described in said deeds by the court canceled, and decreed each to be the owner in fee simple of such undivided half interest; that she have all the household goods and kitchen furniture, and that appellee have and recover of and from her the sum of $1,750, with interest at the rate of 6 per cent. per annum from the date of the decree, for which he should have execution, and decreed same to be a lien upon appellant's undivided interest in the property, situated in Calhoun and Ouachita counties, given her by the decree; that certain money deposited in the People's Savings Bank at Little Rock, $400, in the name of appellant, should be paid upon the order of the court to appellee, and credited upon the amount of the judgment; that all the money deposited in the Ft. Smith Bank in appellant's name should be divided equally between them. Both parties excepted to the decree of the court, and from it appealed.

Warren & Smith, of Camden, for appellant. Powell & Taylor, of Camden, for appellee.

KIRBY, J. (after stating the facts as above).

The record is voluminous and the testimony conflicting, and no useful purpose would be served by setting it out upon the question of divorce; but it will suffice to say that the chancellor's finding and decree, granting the divorce to appellee, was not clearly against the preponderance of the testimony, and will not be disturbed.

It is contended for appellant that the conveyances of the property in Calhoun and Ouachita counties were voluntarily made by her husband as advancements and gifts to her, and that the court erred in canceling the deeds therefor, and also in divesting her of a one-half undivided interest in the Ft. Smith property and vesting it in appellee; that appellee was not entitled to the restoration of any of the lands conveyed or the money given to her during the marital relation.

In McNutt v. McNutt, 78 Ark. 346, 95 S. W. 778, the court, construing section 2684 of Kirby's Digest, held that property which the husband conveyed to his wife upon a voluntary separation, and also property which he conveyed to her upon a resumption of the marital relations, was not obtained from him during the marriage and in consideration or by reason thereof, within the meaning of the statute.

In Thomas v. Thomas, 27 Okl. 784, 109 Pac. 825, 113 Pac. 1058, 35 L. R. A. (N. S.) 124, 133, the Supreme Court of Oklahoma, construing the same statute, which was in force in the Indian Territory, held that a gift of property from the husband to the wife during the marriage did not fall within the terms of the statute, and that a decree of divorce was not a bar to an action by a former husband or wife against the other, to enforce any property right growing out of the marital relation after the final divorce was granted; that the court of the territory granting a divorce had no power to dispose of property rights between the parties, further than to make an order...