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Opinion of the Court.

that which she has acquired by her trade, business, labor or services carried on or performed on her sole or separate account; that which a married woman in this State holds or owns at the time of her marriage, and the rents, issues and proceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children by her as his agent;" that, § 4201, "before any married woman shall be entitled to the privileges of this act in respect to property held by her separately as aforesaid, she shall cause her said separate property to be recorded in her name in the county where she lives or has a residence;" and that, § 4203, the property of a woman, whether real or personal, and whether acquired before or after marriage, in her own right, shall not be sold to pay the debts of the husband contracted or damages incurred by him before marriage."

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By the constitution of Arkansas of 1874, it was declared that "the real and personal property of any feme covert in this State, acquired either before or after marriage, whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed or conveyed by her the same as if she were a feme sole, and the same shall not be subject to the debts of her husband." Art. IX, § 7.

The present suit depends upon the construction of these statutory and constitutional provisions, as applied to certain facts disclosed in this case, in respect to which there is no dispute. These facts will now be stated.

James M. Hanks and the appellee were married in the State of Arkansas in the year 1859. During that year a child was born to them, alive, and capable of inheriting. It died in 1862. John F. Hanks, the owner of considerable property, real and personal, in the State of Arkansas, including the lands in dispute, died in 1864, his sole heirs at law being his father, Fleetwood Hanks, and his brother, James M. Hanks,

Opinion of the Court.

the husband of appellee, and his sister, Ann A. Porter, the wife of William Porter. Fleetwood Hanks took a life interest in the estate left by his son; James M. Hanks and Mrs. Porter inheriting subject to that interest. The father died in 1870, whereupon the brother and sister of the decedent became the owners in common of the realty. In 1871 they agreed upon a partition; and James M. Hanks, for the purpose of having the title to his share vested in his wife-he being then perfectly solvent-executed, January 2, 1871, a deed conveying all his interest in the lands so inherited to Mrs. Porter, his wife joining in it for the purpose of relinquishing her dower. At the same time Mrs. Porter, her husband joining with her, conveyed to the appellee what was regarded as one-half in value of the lands inherited from John F. Hanks, including those here in controversy. From the date of that deed forward the lands in dispute have been cultivated by James M. Hanks 66 as agent of his wife and in her name, for her and not in his own right." The deed from Porter and wife to Mrs. Hanks was filed for record, and recorded May 24, 1875, in the county where the lands are situated, and in which the appellee then, and has ever since, resided, and had her home; but "no other schedule of it, nor other record, nor intention to claim it as her separate property, was ever filed by her."

On the 14th of October, 1884, the appellants, J. H. Allen, Thomas H. West and John C. Bush, constituting the firm of Allen, West & Bush, recovered in the court below a judgment against W. L. Nelson and James M. Hanks for $14,645.29, with interest at the rate of six per cent per annum from the above date. The judgment was for a debt contracted in 1881. Execution upon that judgment having been levied on the interest of James M. Hanks in the lands in dispute, and the marshal, Fletcher, having advertised the same to be sold in satisfaction of the execution, the appellee brought the present suit, and seeks a decree perpetually enjoining the sale. The appellants, Allen, West & Bush, answered, insisting that James M. Hanks had an interest in the lands subject to their execution. The decree asked by the appellee was entered, and is now here for review.

Opinion of the Court.

The question to be determined is, whether the appellee's husband has any interest in these lands that may be seized and sold for the debt due Allen, West & Bush, contracted in 1881.

The contention of the appellants is, that upon the marriage of the appellee and her husband in 1859, he acquired, at once, a right to take the rents and profits of all lands owned by the wife at any time during coverture, unless the deed or devise under which she held them expressly excluded his marital rights, or unless the property was "scheduled" in conformity with the laws then in force; and, as to the latter, not even then if acquired either directly or indirectly from the husband; that upon issue born of the marriage in 1859, capable of inheriting, he at once acquired an estate by the curtesy initiate or an estate for life, which he could convey without his wife's consent, was subject to execution for his debts, and was not, and could not be, affected by any subsequent change in the law. The contention of appellee is, that she owned no property at the time of marriage or at the birth of her child, or when it died; that before she acquired any lands whatever, the married woman's law was changed by the constitution of 1868, so as to vest in her an absolute title to all property subsequently acquired by her, exempt from any estate in the husband that would be subject to seizure by his creditors; that the only limitation upon such right was that she should comply with the acts of the legislature passed in reference thereto; and that when the act of 1873 was passed, and she recorded her deed under its provisions, the real estate acquired by her under the constitution of 1868 was free from liability for the debts and contracts of her husband.

If the case depended entirely upon the statutes in force prior to the adoption of the constitution of 1868, it may be that the law would be for the judgment creditors of the appellee's husband, because the provisions of the Revised Statutes of 1858, (Gould's Digest, c. 111, p. 765,) declaring that any married woman might become seized and possessed of property by direct bequest, devise, gift or distribution in her own right and as of her own property, did not apply where the property

VOL. CXXXVI-20

Opinion of the Court.

came from the husband after coverture, or was conveyed by him to his wife directly or indirectly; and, also, because the appellee did not file in the recorder's office, where she lived, the required "schedule." But we are of opinion that the constitution of 1868 made changes in the previous law that had a material bearing upon the rights of the parties. The declaration in that constitution that the property of any female in the State, acquired before or after marriage, whether by gift, grant, inheritance, devise "or otherwise," should, so long as she chose, be and remain her separate estate and property, and subject to be devised or bequeathed by her as if she were a feme sole, placed the property acquired by the appellee after that constitution went into effect, as between herself and her husband, under her exclusive control, (unless the deed or other instrument under which she held it otherwise directed,) with power to dispose of the proceeds as she pleased a power inconsistent with any right in the husband to take the rents and profits. We limit this effect of the constitution of 1868 to property acquired after its adoption, because that instrument, upon this point, should receive the same construction as the Supreme Court of Arkansas has given to the constitution of 1874, namely, that it could not take from the husband any rights vested in him prior to its adoption. Tiller &c. v. MeCoy, 38 Arkansas, 91, 96; Ward v. The Estate of Ward, 36 Arkansas, 586, 588; Shryock, Trustee v. Cannon, 38 Arkansas, 434, 437; Erwin v. Puryear, 50 Arkansas, 356, 358.

Did the constitution of 1868 take from the husband any rights previously vested, in virtue of his marriage, to the lands in dispute? Clearly not. Obviously the appellee had no interest in them at the time of marriage, or at the birth or death of her child, because they were not, at either date, owned by her husband. Nor had she any interest in them at the time of the adoption of that constitution, except that after the death of John F. Hanks, in 1864, she may, perhaps, have had a contingent right of dower in such real estate as might fall to her husband upon the termination of the life estate of Fleetwood Hanks, and after partition between her husband, James M. Hanks, and his sister, Mrs. Porter. When, in 1871,

Opinion of the Court.

the title to these lands was conveyed by Porter and wife to the appellee by direction of her husband, the conveyance was necessarily subject to the constitutional provision then in force, that the lands as between herself and husband should constitute her separate property, and as such, be free from his control. It is true that the lands so conveyed to her did not by the conveyance of 1871 become exempt from liability for the debts of her husband until they were "scheduled," as required by chapter 111 of the Revised Statutes of 1858, which chapter was not, in the matter of scheduling the property of married women, (other than property in slaves,) superseded by the constitution of 1868. Berlin v. Cantrell, 33 Arkansas, 611, 618; Tiller &c. v. McCoy, 38 Arkansas, 91, 95; Humphries v. Hanson, 30 Arkansas, 79, 88. But the provision in that constitution as to the registration of the wife's separate property had reference to its protection against the debts, engagements and obligations of her husband. As between herself and her husband, no registration was required or necessary. A law for registration, such as the constitution of 1868 directed to be passed, was not enacted until 1873, when the act of that year, already referred to, was passed, declaring, among other things, that any property then owned by a married woman, or which had been conveyed to her by any person in good faith and without prejudice to existing creditors, or which she might have acquired as her separate property, should be and remain her sole and separate property, and might be used, collected and invested in her own name, and should not be subject to the interference or control of her husband, or liable for his debts, except such debts as might have been contracted for the support of the wife or her children by her as his agent. That act, as we have seen, provided that before any married woman should be entitled to its privileges, in respect to property held by her separately as aforesaid, she should cause her said property to be recorded in her name in the county where she lived or had a residence. When it was passed, the appellee, by virtue of the deed of 1871 by Porter and wife, and of the constitution of 1868, certainly held the lands in dispute as her separate

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