Moore v. Denson

• Decision Date: 22 December 1924
• Docket Number: (No. 78.)
• Parties: MOORE et al. v. DENSON et al.
• Court: Arkansas Supreme Court

268 S.W. 609

MOORE et al. v. DENSON et al.

(No. 78.)

Supreme Court of Arkansas.

December 22, 1924.

Rehearing Denied March 2, 1925.

Appeal from Circuit Court, Poinsett County; G. E. Keck, Judge.

Action by F. E. Denson and others against O. W. Moore and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Aaron McMullin, of Tyronza, and Gautney & Dudley, of Jonesboro, for appellants.

S. T. Mayo, of Harrisburg, and Basil Baker, of Jonesboro, for appellees.

SMITH, J.

The question involved on this appeal is this: "Is real property, owned by husband and wife by entireties, subject to sale under execution to satisfy a judgment against the husband?"

At section 106 of the chapter on Husband and Wife in 30 C. J. p. 572, it is said:

"In some jurisdictions it is a rule that the interest of the husband in an estate in entirety during coverture may be reached by his creditors on execution; and the purchaser at the execution sale takes subject to the wife's right of survivorship and to her right of possession where that right is conferred or protected either expressly or impliedly by statute. But the weight of authority is to the effect that, where real property is held as an estate in entirety, the interest of neither spouse is liable for the debts of the other; a conveyance by the husband and wife jointly passes title to the property clear of any claim of creditors of the husband; a judgment against one spouse alone is not during the joint lives of the tenants of the estate a lien on the land; and during coverture there can be no sale of any part on execution against either."

Cases supporting both the minority and the majority rules are cited in the notes to the text quoted, and among the cases cited as supporting what is stated to be the minority rule — that the interest of the husband is subject to sale under execution — is our case of Branch v. Polk, 61 Ark. 388, 33 S. W. 424, which is found annotated in 54 Am. St. Rep. 266, and 30 L. R. A. 324.

The question as stated as being involved on this appeal was not directly involved in the case of Branch v. Polk, supra, but the reason given for the decision in that case is decisive of the question involved here.

The facts there were that Polk and his wife were tenants by the entirety of a tract of land, and each executed a mortgage in which the other did not join, conveying to Mrs. Branch an undivided half interest in the land to secure a note due from Mr. Polk to Mrs. Branch. Polk died, the note matured, and Mrs. Branch brought suit to foreclose both mortgages.

The trial court held that neither spouse was seized of any interest which could be conveyed, unless the other spouse joined in the execution of the conveyance. Upon the appeal this court held that Mrs. Polk, having survived her husband, became the sole owner of the land, and that her mortgage deed was valid and binding as to the undivided half interest in said lands conveyed by her as security for the note executed by her husband.

It was there stated that at the common law the husband had, during marriage, exclusive control of such estates, but that this authority of the husband did not arise from any peculiarity of the estate, but arose out of the rule of the common law that, during coverture, the husband had the control of the estate of his wife, and the court proceeded to consider the question whether, under the law of this state, the wife had the power, during coverture, by a separate deed, to mortgage her interest in lands held by herself and her husband as tenants of the entirety.

After recognizing the conflict in the authorities, Mr. Justice Riddick, speaking for the court, said:

"In this state a married woman has full control of her separate property, and may convey and dispose of it as if she were a feme sole. Our Constitution and statute have excluded the marital rights of the husband therefrom during the life of the wife. Const. 1874, art. 9, § 7; Sandels and Hill's Digest, § 4945; Neelly v. Lancaster, 47 Ark. 175; 58 Am. Rep. 752; Roberts v. Wilcoxson, 36 Ark. 355. We think that the effect of these provisions was to give the wife control of all the property owned by her, including her interest in an estate by entirety as well as other real estate. To say that it did not apply to an estate by entirety would be...