268 S.W. 609 | Ark. | 1924
Real property, owned by husband and wife by entireties, is not subject to sale under execution to satisfy a judgment against the husband. 23 C.J. 338;
At 106 of the chapter on Husband and Wife in 30 C.J., page 572, it is said: "In some jurisdictions it is a rule that the interest of the husband in an estate in entirety during coverture may be reached by his creditors on execution; and the purchaser at the execution sale takes subject to the wife's right of survivorship and to her right to possession, where that right is conferred or protected, either expressly or impliedly, by statute. But the weight of authority is to the effect that, where real property is held as an estate in entirety, the interest of neither spouse is liable for the debts of the other; a conveyance by the husband and wife jointly paces title to the property clear of any claim of creditors of the husband; a judgment against one spouse alone is not, during the joint lives of the tenants of the estate. a lien on the land; and, during coverture, there can be no sale of any part on execution against either."
Cases supporting both the minority and the majority rule are cited in the notes to the text quoted, and. among the cases cited as supporting what is stated to be the minority rule — that the interest of the husband is subject to sale under execution — is our case of Branch v. Polk,
The question stated as being involved on this appeal was not directly involved in the case of Branch v. Polk, supra, but the reason given for the decision in that case is decisive of the question involved here.
The facts there were that Polk and his wife were tenants by the entirety of a tract of land, and each executed a mortgage in which the other did not join, conveying to Mrs. Branch an undivided half interest in the land to secure a note due from Mr. Polk to Mrs. Branch. Polk died, the note matured, and Mrs. Branch brought suit to foreclose both mortgages. *137
The trial court held that neither spouse was seized of any interest which could be conveyed unless the other spouse joined in the execution of the conveyance. Upon the appeal this court held that Mrs. Polk, having survived her husband, became the sole owner of the land, and that her mortgage deed was valid and binding as to the undivided half interest in said lands conveyed by her as security for the note executed by her husband.
It was there stated that, at the common law, the husband had, during marriage, exclusive control of such estates, but that this authority of the husband did not arise from any peculiarity of the estate, but arose out of the rule of the common law that, during coverture, the husband had the control of the estate of his wife, and the court proceeded to consider the question whether, under the law of this State, the wife had the power, during coverture, by a separate deed, to mortgage her interest in lands held by herself and her husband as tenants of the entirety.
After recognizing the conflict in the authorities, Mr. Justice RIDDICK, speaking for the court, said:
"In this State a married woman has full control of her separate property, and may convey and dispose of it as if she were a feme sole. Our Constitution and statute have excluded the marital rights of the husband therefrom during the life of the wife; Const. 1874, art. 9, 7; Sandel Hill's Digest 4945; Neelly v. Lancaster,
"But it would seem that this rule is, to a certain extent, illogical, for, under it, the effect of the statutes giving married women control of their own property is also in this instance to curtail the power of the husband over his own interest in real estate. The object of these laws was not to affect in any way the control of the husband over his own property. Their sole purpose was to give to the wife what she did not have at common law, the right to control and convey her own property as if she were unmarried. Mertles v. Numan,
"While such legislation has taken away the control of the husband over the interest of the wife in estates of entireties, as it has removed his control from her other property, yet it does not seem reasonable to hold that it also affected his right to control his own interest in such an estate, or that it exempted such interest from seizure by his creditors. As was said in Buttlar v. Rosenblath,
"The rational construction of these provisions of our Constitution and statute, which `uprooted principles of the common law hoary with age,' swept away the marital rights of the husband during the life of the wife. and gave enlarged powers to married women, is, not *139
that they lessen the power of the husband over his own interest in an estate by entirety, but that they deprive him of the control over the interest of the wife which he formerly exercised jure uxoris, and confer upon the wife the control of her own interest. The right of the wife to control and convey her interest, we think, is now equal to the right of the husband over his interest. They each are entitled to one-half of the rents and profits during coverture, with power to each to dispose of or charge his or her interest, subject to the right of survivorship existing in the other. Hiles v. Fisher,
We have quoted extensively from Branch v. Polk in order that the reasoning of that case may appear, for, as we have said, the legal principles which control the decision of the question here were announced there, although the question arose in a different manner.
We conclude therefore that the reason given for the decision in the case of Branch v. Polk, supra, is decisive of the question raised here, and that the interest of either spouse is subject to sale on execution, and, this being true, we do not stop to inquire whether this is the better rule or is supported by the greater weight of authority.
The court below held that the husband's estate in the land was subject to execution, and refused to quash an execution which had been levied upon it, and that judgment is affirmed. *140