42 Ark. 357 | Ark. | 1883
In 1862 the land in controversy was conveyed to Mrs. Ferrell by a deed which did not exclude the marital rights of any future husband she might take. In 1865 she was married to Dacus, but the land was never scheduled as her separate property under the provisions of the married woman’s law then in forcé. In 1866, Dacus sold and conveyed the land to Kimball with covenants of general warranty and seizin in himself. At the end of this deed is the following clause of joinder: “And for the consideration aforesaid and for divers other good and valuable considerations, I, Ellen J. Dacus, wife of the said William Dacus, do hereby release and quit claim unto the said George L. Kimball, and his heirs and assigns, all my right, title, interest, claim or possibility of dower, in or out of the aforesaid premises.”
The acknowledgment was in the form prescribed for a. joint deed by husband and wife of the wife’s lands. Kim-ball took possession, and in 1868 sold and conveyed to Jones, who died in December, 1878, in possession and claiming the fee. But in January, 1878, Dacus and wife made a deed of gift of the same land to the children of the Ferrell marriage. And they have conveyed their interest to Freed and Jacoway, who brought ejectment against the heirs at law of Jones. The defendant setup the deed of Dacus and wife to Kimball, and of Kimball to their ancestor, and relied on their adverse possession for more than seven years. The cause was without objection transferred to chancery and a receiver was appointed. The court below decreed the land and the rents in the receiver’s hands to the plaintiffs.
In order to pass her estate, apt words of conveyance must be used by a married woman. She must join not only in the formal execution of the deed, but in the operative words of grant. The relinquishment of dower did not carry the fee. 3 Wash. Real Prop., 3d ed., ch. 4., sec. 1, paragraph 20, and cases cited; 1 Bish. Married Women, sec. 594; Agricultural Bank v. Rice, 4 Howard, 225.
But although the deed to Kimball was of no validity as. to Mrs. Dacus, since it onlv released what she never had, nor could have — a right and possibility of dower in her own land, yet it was effectual to convey the interest which her husband had acquired by marriage; that is to say, the use of the land and the right to take rents and profits during coverture, and his right to curtesy if there has been issue born alive of this marriage and Dacus survives his wife. Elliott v. Pearce, 20 Ark., 508; Harrod v. Myers, 21 Ib., 592; Tiller v. McCoy, 38 Ib., 91; Shryock v. Cannon, 39 Ib., 434.
If there could be an adverse holding of the land by the heirs of -Tones, the statute of limitations would not run against the plaintiffs except from the date of the conveyance by Mrs. Dacus, she being a married woman when such holding began, and the coverture continuing until the deed of gift was made to her children. Drennen v. Walker, 21 Ark., 539.
But in truth Dacus, the tenant for life, having conveyed the estate in fee, the statute does not run against the reversioner until the particular estate has been determined. 3 Wash. Real Prop., ch. 2, sec. 7, par. 30, and cases cited.
The present suit is premature. The plaintiff will not be entitled to the possession of the premises during the joint lives of Dacus and his wife, nor until the death of Dacus, if he has curtesy.
Reversed and remanded, with directions to the Circuit Court to place the parties in statu quo, and then to dismiss the action at the cost of the plaintiffs. If the receiver has not been discharged, let him pass his accounts and pay to the defendants whatever funds are in his hands. If the plaintiffs have obtained possession, or received any rents, that possession must be restored, and those rents refunded to the defendants. And, if necessary,to the indemnity of the defendants, the court may charge the re-versionary interest of the plaintiffs with the repayment of these rents, and subject it to sale.