184 S.W.2d 259 | Ark. | 1944
The question is, Did J. H. Pope lose his interest when Union Planters Bank as owner in succession foreclosed the trust deed1 he executed on 240 acres owned by the entirety? — the wife not being a party to the conveyance.
When Mrs. L. P. McBride married Pope she had five children. Katherine, twelve years of age when the wedding occurred in 1899, is one of the appellees here. *941 The land vested in husband and wife through deed of Mary J. Phillips (Mrs. Pope's mother), made in 1901.
Pope alleged his ownership of the lands described in his complaint filed in February 1944. Defendants other than the McBride children settled pendente lite.
Various transactions as abstracted by appellees are set out in the footnote.2
Mrs. Pope died in October, 1940.
The first sale is evidenced by the deed of husband and wife, who conveyed to T. A. Pope3 ". . . a one-H. Pope." March 16, 1921, J. H. Pope's indebtedness of $30,000 to North Memphis Savings Bank was secured by half undivided interest of the one-half interest of James *942 trust deed.4 Two weeks later T. A. Pope also conveyed to a trustee for the Bank. In June 1924, Union Planters Bank foreclosed.5
For a consideration of $5,000, Katherine McBride (September 18, 1928) purchased from the Bank the interest it acquired under the commissioner's deed. By reference to the sequence of transactions, as shown by the second marginal note, it will be observed that the day the Bank's sale was made, Katherine and Mrs. Pope borrowed $4,000 by conveying to a trustee for Abe Goodman the land Katherine had purchased from the Bank. November 4, 1937, Katherine, by quitclaim deed, conveyed her interest to Mrs. Pope for "$1 and other good and valuable considerations received."6 Hence, when Mrs. Pope died, record title was in her.
Two children were born to J. H. Pope and his wife, both of whom are living.
Four of Mrs. Pope's children by her marriage to McBride were living in 1911, and to these, during that year, she devised her real property. There was this explanation in the will: "I make no provision for my two younger children, Cynthia Pearl Pope and James Hannah Pope, because they will be sufficiently provided for out of that part of my property which will pass to their father upon my death." *943
The Court did not err in dismissing J. H. Pope's suit for want of equity.
The primary issue, as stated in the first paragraph of this opinion, has been subdivided by appellant, who seeks answers to the following questions:
(a) Did the transfers from Union Planters Bank to Katherine McBride, and from Katherine McBride to Mrs. Pope, amount to a redemption, having the effect of "recreating an estate by the entirety in a three-fourths interest in the land sued for"? (b) Was a trust created in favor of appellant in consequence of "negotiations and transfers" as to three-fourths of the land, and (c) was there a trust in appellant's favor by reason of transfers from Dr. T. A. Pope to Katherine McBride, and from Katherine McBride to Mrs. Pope, as to the so-called fourth interest sold Dr. Pope by J. H. Pope and his wife?
Appellant says the record conclusively shows that when the property was originally acquired, his money supplied the cash payment, and that he personally discharged a mortgage the grantee assumed. This, however, is denied.
Soon after their marriage the Popes moved to a home owned by Mrs. Pope on McLemore Avenue, in Memphis. Being in need of personal funds, Mrs. Pope mortgaged her home to her husband, and from time to time during succeeding years the two engaged in business enterprises on their separate accounts. There is testimony that domestic relations were far short of that degree of tranquillity found in a well-ordered home. Appellant admits there were occasional discordant notes, but minimizes these with the observation that they were no more frequent nor of greater violence than may be expected in average family life. Katherine McBride and other witnesses say that for years there was an entire absence of congeniality; that in fact, Pope and his wife dealt at "arm's length."
Although the decree does not contain express findings, the Chancellor would have been justified in holding *944 that Katherine McBride's participation was prompted through a desire to assist her mother during extremely difficult times. While appellant argues that the money used in paying the Bank was borrowed from Goodman with the land as security, it appears that the amount paid was $5,000 and the loan was for $4,000. Personal checks were exhibited which, it was contended, were used in the transaction. Nor does the record sufficiently support appellant's insistence that his wife, in acquiring the property, was acting for him, or that their interests were such as to justify the belief there was a unity of purpose. It follows that the trust theory must fail.
Estates by the entirety were discussed by Mr. Justice RIDDICK in Branch v. Polk,
In Roulston v. Hall,
Chief Justice McCULLOCH, in Davies v. Johnson,
Moore v. Denson,
The essential feature of entire estates is that each owner, whether husband or wife, "is secure against an impairment of rights through the sole act of the other." Donahue et ux. v. Hubbard,
Appellant, in the case at bar, did not impair his wife's rights by his mortgage, nor in any manner charge the estate as to her. Had he predeceased Mrs. Pope, title to all the land not otherwise disposed of would have vested in her. But, as was said in the Davies-Johnson case, his trust deed, when foreclosed, conveyed all of the grantor's vested interest, [and] "the rights resulting from survivorship."
Result is that appellant parted with his interest in the property when he permitted foreclosure. The acts of Katherine McBride in purchasing and in conveying to her mother could not have the effect of revitalizing Pope's former estate. He sold the rights resulting from survivorship — a fact he no doubt considered.
Affirmed.
