Hicks v. Fletcher

• Decision Date: 10 January 1921
• Docket Number: 90
• Citation: 226 S.W. 524,147 Ark. 14
• Parties: HICKS v. FLETCHER
• Court: Arkansas Supreme Court

226 S.W. 524

147 Ark. 14

HICKS v. FLETCHER

No. 90

Supreme Court of Arkansas

January 10, 1921

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

1. The execution and delivery by Hicks and wife of the option deed was not a part of the consideration for the execution and delivery of the warranty deed from the Fletcher heirs to Hicks, and Mrs. Hicks' dower right attached under the warranty deed. If Hicks ever owned this land, even for a moment, in his own right, then dower certainly attached to his wife. Title to these lands never passed to Hicks, and his wife was not endowed. Elliott v. Hogue, referred to in 113 Ark. 591, 73 Ark. 211. For distinction between conditions precedent and subsequent, see 26 Ark. 617; 28 Id 48.

The date of a deed and not the date of its acknowledgment is prima facie the date of its delivery. 61 Ark. 104. The recital in the deed of payment of the consideration is prima facie evidence that he paid that amount for the land. 123 Ark. 537.

The production of a deed by a grantee raises a presumption of delivery which can be overcome only by clear and convincing evidence. The statement of the amount of consideration in the deed and acknowledgment of its receipt are prima facie evidence which may be overthrown by parol evidence. 82 Ark 492; 101 Ark. 603. The case in 125 Ark. 441 is right in point as to the consideration expressed in the warranty deed from the Fletcher heirs to Hicks and sustains our contention. On this line, see 71 Ark. 494; 99 Id. 350.

2. Dower has from early times always been highly esteemed in the law. 9 R. C. L. 563 and notes. To support a claim for dower it must be shown that during the marriage the husband was seized of a freehold estate in the real estate and that the seizin was of beneficial quality. 9 R. C. L. 574 and notes 582 and notes.

Dower can not be defeated or impaired by any act of the husband or any title emanating from him. The dower right prevails over any conveyance made by the husband in the execution of which she does not share and remains unaffected by any lien or other claim based on a contract made by him or by execution sale on a judgment against him. 9 R. C. L. 584, 590 and notes.

The right of dower becomes immediate when the husband is seized. Tiedeman on Real Property (enlarged edition), §§ 123-129; 5 Ark. 508; 60 Id. 461; 67 Id. 15; 96 Id. 540; 87 Id. 344; 116 Id. 400; 5 Ark. 610-11.

3. The option could not have been given and was not part of the original consideration, for the reason as shown that all the lands were owned by a number of heirs, and none of them were parties to the proposed deal between appellee and appellant, and the title to all the lands passed to appellant where it remained until appellee decided to avail herself of the option, and, even if the option be binding on Hicks, the right of dower vested in his wife and codefendant, while appellee was considering the question of his option, and the court below was powerless to divest her of her dower right. Taking into consideration all the circumstances in connection with the purported option deed, the contract between appellee and appellant was void. 124 Ark. 313.

Decree affirmed.

Frauenthal & Johnson, for appellee.

From the nature of this case and the agreement between the parties as to this forty-acre tract, Mr. Fletcher had a right to obtain this land free from any dower interest in Roxanna Hicks, the wife. Before any dower interest in land can attach, it is necessary that the husband have seizin. According to the transaction and agreement, the conveyance of this forty to Hicks was made under the understanding and with the purpose of Hicks conveying it to Fletcher, and his agreement to do this was a part of the consideration of the conveyance by the Fletchers to Hicks of this very tract. When the seizin of the husband is merely transitory or he is a mere conduit for the passage of title, the wife has no dower. 19 C. J. 465; 31 Ark. 580.

The simultaneous delivery of a deed for land and the execution of a mortgage to the vendor by the purchaser to secure payment of any portion of the purchase money does not create such seizin as will entitle a wife to dower. 19 C. J. 466. See 29 Ark. 591; 25 Id. 52; 52 L. R. A. (N. S.) 555. In a foreclosure suit of a vendor's lien on land for unpaid purchase money it is not necessary to make the wife of the purchaser a party as she has no dower rights or interest. 126 Ark. 313. Seizin in the husband is a prerequisite of dower in the wife. 139 Ark. 469; 71 Id. 576; 98 Id. 118. Under the facts and the law of this case, the wife of Hicks obtained no dower interest in the land as against the appellee, Fletcher.

OPINION

WOOD, J.

The appellee, J. R. Fletcher, and his brothers and sisters and their descendants were the owners of 520 acres of land in Pulaski County, which appellant, James T. Hicks, desired to purchase. The lands were in the hands of J. A. Gurley as agent of the Fletcher heirs. He, in connection with the appellee, conducted the negotiations for the vendors. In the tract was a forty acres on which were a spring, swimming pool and target range. Appellee desired to retain his own interest and to obtain the interest of the other owners in this forty. Gurley informed appellant of this fact, and that appellant would have to execute to the appellee a written instrument giving him the right to acquire the forty acres of land which he desired. An agreement was entered into between them to the effect that, when the deed was delivered, appellant was to sell to appellee the forty acres desired by him at $ 4 per acre, the same price per acre appellant was paying for the entire tract. The deed to the entire tract of 520 acres was duly executed. An instrument called an option deed was prepared which provided that for the consideration of $ 1 and the undertaking upon the part of the appellee to pay $ 160, the appellant conveyed to appellee a certain forty acres of land described in the instrument. Gurley took these instruments to the appellant, whereupon the...