152 Ark. 187 | Ark. | 1922
Appellant instituted this action in the chancery court of Pulaski County, praying for the reformation of a deed conveying a certain tract of land to herself and her husband and other persons. Her bus-band was one of the defendants, and he and his mortgagee, who intervened in the action, are the appellees. ‘The rights of the other parties to the.suit have passed out of the litigation, and the present appeal concerns the respective rights of appellant and her husband, one the appellees, and the latter’s mortgagee.
The deed sought to be reformed is one which was executed to appellant and her1 husband and her sister and the latter’s husband, as grantees. The reformation sought is to strike out the name of appellant’s husband, Griffin Dennis.
The land now in litigation was inherited by appellant from her father, and another part of the land embraced in the deed has passed out of the controversy. Appellant and her sister, Alice Watkins, inherited 80 acres of land from their father, and this is the land in controversy. They purchased another tract of 80 acres in the same quarter-section from one Kay and executed a mortgage on that tract and the inherited tract. The mortgage was foreclosed, and at the sale Mr. IT. S. Turner purchased the land for the price of $4,160. The sale was confirmed, and commissioner’s deed was made to Turner. Turner purchased the land at the request of appellant and her sister, and there was an understanding that he would give them an opportunity to repurchase the land at the sum of $5,000. Immediately upon receipt of the deed Mr. Turner entered into a written contract with appellant and her sister in accordance with his verbal promise to them. The contract was prepared by an attorney, and in the body of the writing only the names of appellant and her sister were mentioned. The two women with -their husbands were present on the occasion, and at the suggestion of. the attorney who prepared the instrument the two husbands joined in it by attaching their signatures. There is a slight conflict in the testimony as to what was said on that .occasion, but the testimony establishes the fact that the husbands signed the contract at the suggestion of the attorney that they should do so for the reason that they were interested and would have control of the property. Subsequently the parties were unable to pay the purchase price, and' they transferred their rights to a kinsman, K. II. Cunningham, to the 80-acre tract purchased from Kay, and Cunningham paid one-half of the price to Turner. The remainder of the payment was made by the two women and their husbands, and upon the payment of the full price .to Mr. Turner he executed and delivered a deed conveying the property to appellant and her husband, naming him as her husband, and to her sister, Alice Watkins, and her husband Sim. Subsequently, Sim Watkins conveyed all of his interest to his wife, Alice. The parties then divided the land among themselves (without deeds) by setting off 80 acres to Cunningham’s estate and dividing the other 80 by giving a 40-acre tract to Alice Watkins and the remaining 40 to appellant and her husband, Griffin Dennis.
The contention of appellees is that the deed of H. S. Turner conveyed to appellant and her husband Griffin an estate by the entireties, and the contention of appellant is that the deed should be reformed for the reason that her husband Griffin was not a party to the purchase from Mr. Turner, and that his name was included in the conveyance 'by mistake.
We have examined the testimony carefully, and we are of the opinion that the finding of the chancellor to the effect that there was no mistake made in the execution of the deed was not against the preponderance of the testimony. The parties present at various conversations testified with respect to what was said and done when the original contract with Mr. Turner was executed, and also when the deed was executed and delivered. While the names of Griffin Dennis and Sim Watkins, the two husbands, did not appear in the body of the original contract, it is clear that they signed their names to the contract in the presence of their ivives, and with the intention of all parties that they should become parties in interest in the contract. The evidence also tends to show that they had control of the property, and that they assisted in making payments of the price, and that when the deed was .executed their names were included with the knowledge and consent of the two women. They accepted the deeds with the knowledge that the conveyanee had included their husbands as grantees. This being true, a court of equity should not grant a reformation.
It is also contended by learned counsel for appellant that under the present statutes of this State completely .emancipating married women from former disabilities of coverture, there is no such thing as the creation of mi estate by the entirety. We have, after careful consideration, decided that question against the contention of counsel, and held that none of the statutes on this subject destroy the common-law doctrine of the creation of estates by entirety. Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7; Parrish v. Parrish, 151 Ark. 161.
The fact that other grantees were named in the deed does not destroy the effect in creating an estate by the entirety so far as concerns the undivided interest conveyed to appellant and her husband. In such a conveyance the husband and wife are regarded as one person and take, not as joint tenants, but as tenants by entirety of the share which they together hold as tenants in common with the other grantees named. 13 R. C. L. 126; Hall v. Stephens, 65 Mo. 670.
The chancery court having properly refused to reform the deed, it follows that there was conveyed to appellant and her husband a joint estate with the fight of survivorship, and that the husband had the power to mortgage his interest therein.
Decree affirmed.