Mills v. Alexander

• Decision Date: 07 February 1944
• Docket Number: 4-7228
• Citation: 177 S.W.2d 406,206 Ark. 754
• Parties: Mills v. Alexander
• Court: Arkansas Supreme Court

177 S.W.2d 406

206 Ark. 754

Mills v. Alexander

No. 4-7228

Supreme Court of Arkansas

February 7, 1944

Appeal from Desha Chancery Court; E. G. Hammock, Chancellor.

Affirmed.

John Baxter and J. T. Cheairs, for appellant.

John F. Gibson, for appellee.

OPINION

Robins, J.

This suit was instituted by appellant, Emma Mills second wife and widow of Will Mills, deceased, to enjoin appellee, Hattie Alexander, daughter of Will Mills, from interfering with the possession of appellant as to an eighty-acre tract owned by Will Mills in his lifetime, and to recover rents from appellee for the wrongful use of said land during the years 1941 and 1942. Appellant based her right of occupancy on the ground that this land was the homestead of her husband. Appellee denied that the land was the homestead of Mills at the time of his death and claimed title thereto as heir of Mills, and also as grantee in a deed executed by him in his lifetime. The title to the tract here involved had passed by mesne conveyances to Will Mills and Elizabeth Mills, husband and wife, and on November 28, 1921, Will Mills signed a deed, containing a recital that it should become effective at his death, conveying this land to Elizabeth Mills, his wife, to Hattie Alexander, his daughter, and to Willie Alexander, daughter of appellee. This deed was not acknowledged until September 9, 1925, and on the same day Mills had the deed recorded. He then turned it over to a friend with instructions to deliver it on his death to appellee, which was done. The lower court found the issues in favor of appellee, and from its decree dismissing her complaint for want of equity appellant prosecutes this appeal.

Appellant died on November 4, 1943, during the pendency of this appeal. Appellee has filed a motion to affirm the decree of the lower court on the ground that any interest appellant had in the land was only a life estate and was terminated by her death. To this counsel for appellant have responded that also involved in this appeal is the question of rents sought by appellant which, if found due, would inure to the benefit of appellant's estate.

For reversal of the lower court's decree denying appellant's claim of right to occupy the land as her homestead and denying her recovery of rents arising therefrom, appellant's counsel argue that the deed executed by Will Mills, purporting to convey the land to his then wife and to his daughter, appellee, and granddaughter was void, under the provisions of § 7181 of Pope's Digest of the laws of Arkansas, which require that the wife join in the execution and acknowledgment of any conveyance affecting the homestead, because Elizabeth Mills, wife of Will Mills, did not join in the execution or acknowledgment of same. The lower court held that, since the conveyance was to the wife as one of the grantees, the provisions of § 7181, supra, did not render the deed void, and based this conclusion on the opinion of this court in the case of Stephens v. Stephens, 108 Ark. 53, 156 S.W. 837.

In the view we take of the matter it has become unnecessary for us to pass on the validity of this deed as a conveyance of the land by Will Mills. Certainly, any interest of appellant in the land, by way of homestead right or dower, terminated on her death, so that this cause of action, as to the right to the possession of the land, abated when appellant died. Burrus v. Butt, 118 Ark. 335, 176 S.W. 308; 1 C. J. S., p. 205, § 149.

It appears from the record that on March 21, 1941, appellant and appellee...