121 Ark. 64 | Ark. | 1915
The parties to this litigation were husband and wife, the wife being the plaintiff in the suit below in which she asked both a divorce and the setting aside to her of the share of the husband’s property allotted the wife under section 2681 of Kirby’s Digest, upon the dissolution of a marriage, by a divorce to the wife. The divorce was granted and appellant makes no complaint of this action of the court, but by this appeal he questions the division made of his property.
Upon granting the decree for the divorce the court appointed one S. B. Wycough as a master with directions “to make an accounting of all the defendant’s real and personal property, and to submit- such statement to this court aft its next regular term. ’ ’ A report was filed by the master at the following term of the court, which purported to set out the property owned iby appellant. Thereupon the court appointed three commissioners and directed that they “be and they are hereby appointed as commissioners for the purpose of assigning dower in the above described lands and premises, and the -above-described personal property to the plaintiff, and they are hereby authorized to apportion and set aside to the plaintiff one-third in value of said lands and personal property, if the same can be fairly and equitably done, and in the event it be determined by said commissioners that said property, either real or personal, can not be equitably divided and apportioned in kind, then said commissioners are authorized to advertise and sell all of said property at public outcry to the highest bidder, on a credit of three months. * * * The said commissioners are hereby ordered to make .a fall report of their actions hereunder .at the next term of the court.” These commissioners made this report, but in their report there appeared the description of a number of tracts of land, together with .a list of personal property, which had not been contained in the original report of the master. This report of the commissioners is a very elaborate one, and in it each tract of land is separately valued and each article of the personal property is appraised, and in this re-' port the commissioners undertook to divide (the lands in kind and to divide the personal property also. These commissioners appear to have inquired into the title by which appellant held his lands, and to have ascertained that he had title in fee simple to some of them while as to other portions he had only a tax title, and in the division of the lands this fact was taken into account, and there was a division in kind of these lands. It appeared ■from the report of these commissioners that there were outstanding mortgages executed on all these lands, securing an indebtedness of about $9,000, but it was shown by the report that all of said mortgages had been duly signed and acknowledged by appellee in which she had relinquished her right of dower and homestead in and to said lands. The further proceedings in the cause consisted in a hearing of appellant’s exceptions filed to this report.
Other exceptions to the effect that the personal property was not properly divided do not appear, to be well taken. Upon this question we simply .announce our conclusion, as it would require a lengthy and unprofitable discussion of ia mere matter of accounting, and we think the chancellor’s finding was not contrary to the preponderance of the evidence.
As has been said, the real question in the case is whether or not the lands were properly divided, and the decision of 'that question turns upon the construction to be given section 2684 of Kirby’s Digest as applied to the facts of this case. Such portions of that section as are relevant here read as follows:
“In every final judgment for divorce from the bonds of matrimony, * * * where the divorce is granted to the wife, the court shall make an order that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage, and in consideration or by reason thereof; and the wife so granted a divorce against the husband 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 time 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. * * ”
In construing this section in the case of Beene v. Beene, 64 Ark. 522, the court said:
“The Legislature seems to have enacted that statute for the purpose of putting an end to all after controversies as to dower rights, and to settle the matter when a divorce is granted dissolving the marital bonds. Hence, the allowance to the divorced wife, who is entitled to all, is exactly or substantially the same as would be her dower interest in case of the death of her husband; that is to say, one-third for life of all the real estate of which he bas been seized of an estate of inheritance at any time during the marriage, except such as she has relinquished in due form. The court therefore erred in decreeing her only one-third of the remainder of his estate after deducting the amount of his debts, and should have allotted her one-third the value of his personalty absolutely, without taking his indebtedness into consideration, :and ¡should have given her one-third of his realty for her natural life, and ordered otherwise as the ¡statute provides. ” See also, Hix v. Sun Ins. Co., 94 Ark. 485.
The mortgaged lands having been divided in kind, the husband 'and the wife each take their interest subject to the mortgage. If the mortgage indebtedness equals the value of the land, then neither takes 'anything of value by the division, hut the interest of each is subject to the mortgage and the value of that interest depends on the proportion which the indebtedness secured hears to the value of the land. Of course, the mortgagee can look to the land as a whole for the satisfaction of his debt. This indebtedness has not been paid, ¡but when it is paid, if the payment shall not be made in the proper proportion, then the right of contribution will exist in favor of the one who pays more than his or her share. No such question has yet .arisen in this case, and we need not discuss it further, except to stay that the rule for 'ascertaining the share to be paid by the wife is stated in the case of Salinger v. Black, 68 Ark. 449, where the personal property of an estate had ¡been used to discharge an encumbrance upon the lands, out of which the widow’s dower had been carved, and in which case it was held that the general creditors of the estate had a right of contribution against the interest so assigned the widow.
It is true the decree of the court did not specifically state that appellee took her interest subject to the outstanding mortgages against it, 'but as she could not take it otherwise, the decree must be so construed, and it will be affirmed.