Stanley v. Bonham

• Decision Date: 04 December 1889
• Parties: STANLEY v. BONHAM
• Court: Arkansas Supreme Court

12 S.W. 706

52 Ark. 354

STANLEY v. BONHAM

Supreme Court of Arkansas

December 4, 1889

APPEAL from Drew Circuit Court, CARROLL D. WOOD, Judge.

This is a suit to enjoin the sale under execution of the plaintiff's curtesy in the separate estate of his deceased wife.

At the hearing below a temporary injunction, which had been granted in the cause, was dissolved, and the complaint was dismissed. The court refused to award the defendant more than $ 10 damages upon the dissolution of the injunction, and both parties have appealed.

Section 7, Article 9, of the Constitution of 1874, is as follows:

"The real and personal property of any femme covert in this State acquired either before or after marriage, whether by gift grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed or conveyed by her the same as if she were a femme sole, and the same shall not be subject to the debts of her husband.'"

Section 4624, Mansf. Dig., provides that the property of a married woman, whether acquired before or after marriage, together with the rents and profits thereof, "shall notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband or liable for his debts."

Judgment affirmed.

J. M. & J. G. Taylor, for appellant.

1. Wherever the common law still prevails the husband's estate by curtesy is subject to execution, but wherever (as in this State) the common law has been superseded by Married Women's Acts, the right to seize the estate is abrogated whether the wife be dead or alive. 47 Ark. 175; Mansf. Dig sec. 4624; 77 Va. 639; 111 U.S. 731; 36 Ark. 588; 13 Allen, 64; 10 id., 94; 9 F. 31; 94 U.S. 770; 52 Ala. 456; Bishop on Mar. W., sec. 824; 34 F. 14; 86 Tenn. 333; 119 U.S. 642; Freeman on Ex., sec. 176; 29 Ark. 209.

2. This was not a suit to enjoin the collection of a debt, but only the sale of certain lands, and it was error to award damages on the dissolution of the injunction. 24 Ark. 430; 48 Ark. 24.

Wells & Williamson and W. S. McCain, for appellees.

1. Under the decision in Neely v. Lancaster, 47 Ark. 175, the husband was seized of an estate by curtesy consummate. Sec. 7, Art. 9, Const., and sec. 4624, Mansf. Dig., only protect a married woman's estate during her life, and does not at her death effect the law of succession. 44 Ark. 153; ib., 112; 47 Ark. 175; 77 Va. 639. There is no statutory curtesy in this State. It is a freehold estate (Tiedeman on Real Prop., sec. 101; 38 Ark. 91), subject to execution for the husband's debts. Mansf. Dig., sec. 3001; Tiedeman R. P., sec. 109; Washburn R. P., vol. 1, p. 181, sec. 51; Freeman on Ex., sec. 186; 38 Ark. 91. Nor can the husband defeat the right by disclaimer. 1 Washb., R. P. sec. 51; 13 Conn. 85.

2. Stanley is wholly insolvent, and the injunction was in effect an injunction against the collection of a debt generally, and works the same injury. The court should have assessed damages to the full amount of the judgment and costs.

OPINION

PER CURIAM.

The husband's right of curtesy in the deceased wife's statutory separate estate is subject to execution for the payment of his debts, just as the estate was at common law in lands held by the wife to her separate use and free from the husband's debts. This is the logical deduction from the decision of Neely v. Lancaster, 47 Ark. 175, 1 S.W. 66. Whether the husband takes an estate freed from the right of the wife's creditors to subject the property to the payment of her debts is not determined.

As to the assessment of damages on dissolution of an injunction the statute does not authorize an assessment except in cases where the proceedings upon a judgment have been stayed--that is, when the enforcement of the judgment has been enjoined. Sec. 3763. An injunction preventing the...