Appellant was granted a divorce by decree which ordered a property division. She appeals from that portion of the decree which relates to the division of property.
Her First complaint relates to the treatment of certain promissory notes. There were three notes which were made payable to both parties, arising out of the sale of a farm, cattle and equipment to Dr. L. G. Moody and Paul Strecker. In the transaction, the purchasers paid $30,000 cash and the balance of $125,000 was evidenced by promissory notes, secured by a mortgage on the land, cattle and equipment. The notes were payable in annual installments of $6,250 over a period of 20 years. Appellee testified that one note for $55,-000 was for the land, the title to which had been held by the parties jointly before the sale. He contended that another $55,000 note was for cattle of which he was the sole owner. The remaining note for $15,000 was for equipment, according to appellee, who said that he was the sole owner of that, also. He testified that the balance remaining due on these notes was $118,750.
Appellee testified that, in spite of the different ownerships of the realty and personalty, all notes were payable to both appellant and appellee. Appellee had caused the attorney who represented him in the sale to redraft the notes several times before they were executed. Even though appellee testified that the notes for the cattle and equipment were erroneous in this respect, the necessity for correction of the earlier drafts seems to have been directed toward arranging for release of the cattle from the mortgage after five years and the equipment after seven years, without changing the identity of the payees. Apparently appellee took the notes to another attorney for examination before the divorce action was filed, but the record does not reveal that anything further was done about changing these notes.
The chancellor directed that the $55,000 note representing the balance due on the land be divided and awarded appellant one-half of the cattle note less $5,000 and held that appellee was entitled to the $15,000 note without any division. We agree with appellant that the chancellor erred in his treatment of these notes. The chancellor, in announcing his findings, stated that ordinarily a note made payable to a husband and wife jointly would entitle each to one-half on divorce and that he believed the parties were bound by the note, but noted that there was testimony that the cattle belonged to the husband and that the wife would have been entitled to only one-third of the cattle and, since there seemed to be some question about the matter, he allowed the husband one-half of the cattle note plus $5,000 and the wife the balance. He also stated that under a strict construction of the law the parties would each be entitled to one-half of the equipment note, but, since in all probability the equipment was purchased by the husband, he was entitled to the entire note. Later the court said that this was done to compensate for the disparity in value of real estate awarded the respective parties.
These notes, in spite of appellee’s protestations, were held as a tenancy by the entirety. We have long recognized that there may be a tenancy by the entirety in personal property, including choses in action. Union & Mercantile Trust Co. v. Hudson,
The acquisition of property, whether realty or personalty, by persons who are husband and wife by an instrument running to them conjunctively, without specification of the manner in which they take, usually results in a tenancy by the entirety. Terral v. Terral, supra. See, Jordan v. Jordan, supra. See also, Gladowski v. Felczak,
Some courts base the tenancy upon an implied consideration that a wife who does not furnish any of the consideration to the third party executing the instrument or conveyance will faithfully perform the marriage vows as long as the marital status exists. King v. King,
The presumption is strong, and it can be overcome only by clear, positis :, unequivocal, unmistakable, strong, and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof. Honeycutt v. Citizens Vational Bank in Gastonia,
Where a note, or a note and mortgage, are made payable to a husband and wife, the same rules and presumptions apply. Salvation Army, Inc. v. Hart,
We certainly cannot agree with appellee that his testimony was clear, convincing or cogent evidence that the insertion of appellant’s name on these notes was only a clerical error. Nor do we agree that the notes should be reformed. In the first place, clear, convincing, unequivocal and decisive evidence is required for reformation. McIntyre v. McIntyre,
The chancery court had no power to do anything with the property held by the entirety except to convert it into a tenancy in common. In most states, a decree of divorce in and of itself operates to convert a tenancy by the entirety into a tenancy in common. But this has never been the case in Arkansas. Jenkins v. Jenkins,
It logically follows that the chancellor erred in awarding one party a greater interest than the other in these notes made payable to both. See Yancey v. Yancey, supra. The effect of such a dissolution of an estate by the entirety was treated extensively and logically by the Supreme Court of Oregon in Schafer v. Schafer,
Insofar as the Moody and Strecker notes are concerned, the decree is modified to award appellant a one-half interest in each of said notes.
Appellant alleges that there were other errors in the property awards. She points out that she was given no interest in a promissory note of J. P. Davidson and that the chancellor did not take into consideration an indebtedness owed by one Tucker. She correctly asserts that she was entitled to a full one-third of appellee’s property. Ark. Stat. Ann. §34-1214 (Repl. 1962); Bowling v. Bowling,
We cannot say on the record before us that the court erred in failing to award appellant an interest in the Tucker debt. Appellant was awarded certain furniture, household goods and funds in a bank account. Since we are unable to say from the record that appellant did not receive one-third in value of the personal property and since the court specifically asked the attorneys for both parties if he had overlooked anything, and received a negative response, we cannot say that appellant has demonstrated error in this regard.
We do, however, agree that there was a preponderance of the evidence to show that there was a wrongful disposition of personal property by appellee to defeat appellant’s marital interest and that it was error for the court to refuse to consider or make any order concerning items removed by appellee. An extensive enumeration of these items was made by appellant and it was not substantially contradicted. See Carr v. Carr,
The real estate in Arkansas and that in Florida were disposed of by the requirement that the parties execute quitclaim deeds consistent with the court’s findings. Appellant has expressed her satisfaction with this dissolution of these estates by the entirety. We are in no position on de novo review to direct the particular disposition to be made of the real estate on the record before us on this appeal.
We have attempted to arrive at a satisfactory modification of the court’s decree to avoid a remand. We are unable to do so because the trial court attempted to do equity between the parties by adjusting differences in real estate values by allowances of personal property and are unable to say what additional allowance should be made on account of property removed by appellee. We are further aware of the fact that payments on the jointly owned notes may have been made during the pendency of this litigation and that some accounting between the parties will be necessary. We have no satisfactory alternative to a remand of this case for the entry of a decree and further proceedings consistent with this opinion and for a determination what additional personal property award should be made to appellant and whether a different decree should be entered as to the Arkansas and Florida real estate. Cf. Yancey v. Yancey, supra.
The decree is reversed and the cause remanded.
Notes
The effect of Schafer and the validity of its rationale is not affected by such later decisions as Siebert v. Sieberl,