Pope v. McBride

• Decision Date: 20 November 1944
• Docket Number: 4-7443
• Parties: Pope v. McBride
• Court: Arkansas Supreme Court

184 S.W.2d 259

207 Ark. 940

Pope v. McBride

No. 4-7443

Supreme Court of Arkansas

November 20, 1944

Appeal from Crittenden Chancery Court; Francis Cherry, Chancellor.

Affirmed.

Wils Davis and R. C. Brown, for appellant.

Edward P. Russell and A. B. Shafer, for appellee.

OPINION

Griffin Smith, Chief Justice.

The question is, Did J. H. Pope lose his interest when Union & Planters Bank as owner in succession foreclosed the trust deed ^[1] he executed on 240 acres owned by the entirety? -- the wife not being a party to the conveyance.

When Mrs. L. P. McBride married Pope she had five children. Katherine, twelve years of age when the wedding occurred in 1899, is one of the appellees here. The land vested in husband and wife through deed of Mary J. Phillips (Mrs. Pope's mother), made in 1901.

Pope alleged his ownership of the lands described in his complaint filed in February 1944. Defendants other than the McBride children settled pendente lite.

Various transactions as abstracted by appellees are set out in the footnote. ^[2]

Mrs Pope died in October, 1940.

. . .

The first sale is evidenced by the deed of husband and wife, who conveyed to T. A. Pope ^[3] ". . . a one-H. Pope." March 16, 1921, J. H. Pope's indebtedness of $ 30,000 to North Memphis Savings Bank was secured by half undivided interest of the one-half interest of James trust deed. ^[4] Two weeks later T. A. Pope also conveyed to a trustee for the Bank. In June 1924, Union & Planters Bank foreclosed. ^[5]

For a consideration of $ 5,000, Katherine McBride (September 18, 1928) purchased from the Bank the interest it acquired under the commissioner's deed. By reference to the sequence of transactions, as shown by the second marginal note, it will be observed that the day the Bank's sale was made, Katherine and Mrs. Pope borrowed $ 4,000 by conveying to a trustee for Abe Goodman the land Katherine had purchased from the Bank. November 4, 1937, Katherine, by quitclaim deed, conveyed her interest to Mrs. Pope for "$ 1 and other good and valuable considerations received." ^[6] Hence, when Mrs. Pope died, record title was in her.

Two children were born to J. H. Pope and his wife, both of whom are living.

Four of Mrs. Pope's children by her marriage to McBride were living in 1911, and to these, during that year, she devised her real property. There was this explanation in the will: "I make no provision for my two younger children, Cynthia Pearl Pope and James Hannah Pope, because they will be sufficiently provided for out of that part of my property which will pass to their father upon my death."

The Court did not err in dismissing J. H. Pope's suit for want of equity.

The primary issue, as stated in the first paragraph of this opinion, has been subdivided by appellant, who seeks answers to the following questions:

(a) Did the transfers from Union & Planters Bank to Katherine McBride, and from Katherine McBride to Mrs. Pope, amount to a redemption, having the effect of "recreating an estate by the entirety in a three-fourths interest in the land sued for"? (b) Was a trust created in favor of appellant in consequence of "negotiations and transfers" as to three-fourths of the land, and (c) was there a trust in appellant's favor by reason of transfers from Dr. T. A. Pope to Katherine McBride, and from Katherine McBride to Mrs. Pope, as to the so-called fourth interest sold Dr. Pope by J. H. Pope and his wife?

Appellant says the record conclusively shows that when the property was originally acquired, his money supplied the cash payment, and that he personally discharged a mortgage the grantee assumed. This, however, is denied.

Soon after their marriage the Popes moved to a home owned by Mrs. Pope on McLemore Avenue, in Memphis. Being in need of personal funds, Mrs. Pope mortgaged her home to her husband, and from time to time during succeeding years the two engaged in business enterprises on their separate accounts. There is testimony that domestic relations were far short of that degree of tranquillity found in a well-ordered home. Appellant admits there were occasional discordant notes, but minimizes these with the observation that they were no more frequent nor of greater violence than may be expected in average family life. Katherine McBride and other witnesses say that for years there was an entire absence of congeniality; that in fact, Pope and his wife dealt at "arm's length."

Although the decree does not contain express findings, the Chancellor would have been justified in holding that Katherine McBride's participation was prompted through a desire to assist her mother during extremely difficult times. While appellant argues that the money used in paying the Bank was borrowed from Goodman with the land as security, it appears that the amount paid was $ 5,000 and the loan was for $ 4,000. Personal checks were exhibited which, it was contended, were used in the transaction. Nor does the record sufficiently support appellant's insistence that his wife, in acquiring the property, was acting for him, or that their interests were such as to justify the belief there was a unity of purpose. It follows that the trust theory must fail.

Estates by the entirety were discussed by Mr. Justice Riddick in Branch v. Polk, 61 Ark. 388, 33 S.W. 424, 30 L. R. A. 324, 54 Am. St. Rep. 266. A married woman, it was said, may convey an undivided half interest in such an estate, subject to the husband's right of survivorship. Commenting upon the effect of legislation enlarging the rights of married women, Judge Riddick said: "The right of the wife to control and convey her interest [in an estate by the entirety] . . . is now equal to the right of the husband over his interest. They each are entitled to one-half of the rents and profits during coverture, with power to each to dispose of or to charge his or her interest, subject to the right of survivorship existing in the other."

In Roulston v. Hall, 66 Ark. 305, 50 S.W. 690, 74 Am. St. Rep. 97, a wife who divorced her husband was held to be entitled to rents from half of the whole estate while they both lived, the entire property going to the survivor. But the right of disposal was recognized, the holding being that "[such alienation by the husband] will not defeat the wife's title to that moiety if she survive him; but, if he survive, the conveyance becomes as effective to pass the whole estate as it would had he been sole seized at the time of the conveyance."

Chief Justice McCulloch, in Davies v. Johnson, 124 Ark. 390, 187 S.W. 323, in holding that the character of an estate held by the entirety was not destroyed by divorce, said: "Suppose one of the parties executed a deed to a third party during the coverture, purporting to convey the whole estate, the deed would convey all of the vested interest of the grantor, including the rights resulting from survivorship, and it would be an anomalous situation to hold that such a vested interest could be divested by divorce of the parties."

Moore v. Denson, 167 Ark. 134, 268 S.W. 609, is authority for the proposition that real property held as an estate by the entirety may be sold under execution to satisfy a judgment against the designated spouse. Cases holding...