| Ark. | Apr 5, 1920
Appellee, Ella Austin, and her husband, Oscar Austin, resided together in Benton County, Arkansas, until February 23, 1917, when there was a separation. They have one child the issue of their intermarriage. Oscar Austin owned the quarter section of land which is the subject of the controversy on this appeal, and in addition to household effects he owned personal property, consisting mostly of live stock, of the value of $1,200. On March 7,1917, appellee filed the original complaint in the present action against, her husband for divorce and for allotment of her share of the. property which she was entitled to under the statute providing that in a final judgment for divorce granted the wife against the husband she 1‘ shall be entitled to one-third of the husband’s personal property absolutely, and one-third of all the lands whereof her husband was seized of an estate of inheritance at any timé during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property, both real and personal, to which such wife is entitled; and when it appears from the evidence in the case, to the satisfaction of the court, that such real estate is not susceptible of the division herein provided for without great prejudice to the parties interested, the court shall order a sale of said real estate to be made by a commissioner,” etc. Kirby’s Digest, § 2684.
v Process was issued for personal service, but the service thereof was evaded by the defendant, Oscar Austin, who left the State after the commencement of the action and carried away his aforementioned personal property, except household goods. Subsequently appellee filed proper affidavit for warning order, which was published as required by law. During the pendency of the action, appellant, Fannie Austin, who is the mother of Oscar Austin, intervened in the action, claiming that she was the owner of the land in controversy by purchase from the defendant. Oscar Austin did not appear in the action.
The cause was heard by the court, and a decree for divorce was granted in appellee’s favor, and the decree was also in favor of appellee for the custody of the child and for division of the property in accordance with the statute quoted above. The court found in the first place that the land was not susceptible of division and ordered a sale by commissioner for the purpose of dividing the proceeds in accordance with the terms of the statute. The court also found that the defendant had left the State for the purpose of evading process in this action and that he carried away the personal property for the purpose of preventing appellee from obtaining a decree in this action for her share of the property, and that the sale and conveyance of the land in controversy by the defendant to appellant was done for the fraudulent purpose of cheating and defrauding appellee out of her rights under the statute, and that appellant participated in the fraud. The court, therefore, ascertained the value of the personal property and declared a lien in appellee’s favor for the value of her share thereof on the remaining interest in the real estate, or the proceeds thereof.
The testimony in the case is not abstracted, and it is conceded that it was sufficient to support the findings of the court. The intervener, Fannie Austin, has appealed, but the defendant has not appealed, and does not appear in this court. The appeal raises, therefore, only such questions as affect the rights of the appellant. The failure of appellee to give bond for restoration of the property, as required by statute, is not open to review on this appeal, as it does not affect the rights of appellant.
It is contended, however, that the court was without jurisdiction to decree a lien on the land in favor of appellee for the value of her interest in the personal property for the reason that there was neither personal service, or process on the defendant nor sequestration of the property by attachment or otherwise. We held in the case of Allen v. Allen, 126 Ark. 164" date_filed="1916-11-13" court="Ark." case_name="Allen v. Allen">126 Ark. 164, that a suit for division of property under the statute in divorce proceedings was a proceeding in rem, and that the filing of a complaint gave the court jurisdiction to divide the property in accordance with the terms of the statute, or to order a sale where there could be no division. The point is not properly before us to decide whether or not the court, in the absence of personal service of process or a sequestration of the property under process of the court, acquires jurisdiction in a divorce proceeding to declare a lien on the surplus proceeds arising from the sale of real estate in order to award to the wife her share of the real estate. If it be conceded that jurisdiction was not acquired by merely filing the complaint, still it was acquired on the intervention and cross-complaint of appellant, who asserted title to the property under purchase from the defendant during the pendency of the litigation. This raised an issue between appellee and appellant with respect to this property, and the proceeds thereof, and the prosecution of an appeal by the intervener alone raises only such questions as affect her rights or interest in the property. -
There is, however, a very serious question raised as to whether or not the court had jurisdiction under any circumstances to decree the wife a lien on her husband’s real estate for the value of her share in the personal property of which she had been deprived by the wrongful act of the husband. The statute under which the proceedings are had clearly and unmistakably provides for an allotment of specific property, and not a decree for the value. It is plain, therefore, that the statute itself does not declare a remedy for property which is not available for division at the time of the decree. The statute does, however, declare the rights of the wife in the property, and if a remedy exists at all it must be found under general principles whereby equity affords a remedy for a wrongful deprivation of existing rights.
We have reached the conclusion that under the ordinary powers of a court of equity such remedy exists. The statute itself does, as before stated, provide the rights of a wife who is entitled to and is given a decree for divorce. It provides that the wife “shall be entitled to one-third of the husband’s personal property absolutely.” Fraudulent conduct of the husband in carrying the property out of the jurisdiction of the court during the pendency of the action brings the case within the ordinary powers of the court of equity to grant relief from fraud. It does not constitute the creation of a new remedy, but merely a new application of the well-established remedy afforded under the peculiar powers of a court of equity. The finding by the court that the property was taken away from the jurisdiction of the court with the fraudulent intention of depriving appellee of her share thereof, and the finding that the defendant conveyed the real estate to appellant for the fraudulent purpose of defeating the rights of appellee, called for an application of the principle upon which this remedy is founded.
The court also decreed to appellee the recovery of the sum of $150 as her attorney’s fee. The reasonableness of the amount of the fee allowed is not disputed, and we are of the opinion that it was not improper to make the allowance as a lien on the real estate which the defendant had conveyed to appellant in fraud of the rights of appellee. This does not result in any way from the statute quoted above, but upon general principles of equitable relief against fraudulent conveyances.
Affirmed'.