Opinion of the Court. property; and when the deed to her, under which she acquired title, was recorded in the county where she lived or had her residence, all was done that the act of 1873 required to be done in order to protect her estate against the creditors of her husband. But it is said, that, as the conveyance to the appellee in 1871 did not, in express terms, create a separate estate in her favor, the placing it upon record did not meet the requirements of the statutes in force when the constitution of 1868 was adopted, or of the act of 1873; and that, in order to protect the property against the creditors of the husband, it was necessary that there be a record of the wife's property distinctly as her separate estate. Such, perhaps, may have been the state of the law in Arkansas prior to the act of 1873, although there is language in Tiller v. McCoy, 38 Ark. 91, 96, (which was a case between a married woman and the creditors of the husband,) indicating that there was some difference between the recording required by that act and the "scheduling" provided for in previous statutes. The court, in that case, said: "Appellee did not schedule her land as required by the act in Gould's Digest, (chapter 111, p. 765,) and she held it by inheritance, and not by any conveyance or bequest, etc., showing that it was to be exempt from liabilities for her husband. Nor did she cause the land to be recorded in her name as required by the act of April twenty-eighth, 1873." This language implies that some distinction was made between the recording required in the act of 1873 and the scheduling" prescribed in previous statutes. Be this as it may, the constitution of 1868 was itself notice that property acquired by a married woman after its adoption, whether by gift, grant, inheritance, devise "or otherwise," should be and remain, so long as she chose, her separate estate; and when the deed of 1871 was recorded in 1875, all had notice of record that, if that deed be interpreted in the light of the constitution in force when it was executed, the property described in it was, by force of that instrument, the separate estate of Mrs. Hanks, until by conveyance or in some other mode she chose that it should not remain her separate prop Opinion of the Court. erty. The effect of the constitution of 1868, and of the act of 1873, in respect to property acquired by a married woman after the adoption of the former and after the passage of the latter, was to make that property her separate estate as between herself and her husband, whether the deed conveying the title to her was recorded or not; and, as between her and the creditors of the husband, from the time the property, so held by her separately, was recorded in her name in the county where she lived or had a residence. It was so recorded in 1875. If, as between the appellee and her husband, the latter could not, of right, take the rents and profits of the wife's land, it is not perceived that he had any interest that could be seized by his creditors, at least after the deed of 1871 was recorded in the proper county. When to these considerations is added the fact that the deed under which the appellee claims was recorded after the constitution of 1874 took effect, and long before the debt of Allen, West & Bush was contracted, there would seem to be no just ground for the claim that her property is liable to be sold for that debt. It may be also observed, that, while the constitution of 1874 is not to be so construed as to divest the husband of any right previously vested in him, we see no reason why the appellee, as between herself and the appellants, may not invoke the protection of the clause in that instrument exempting the wife's property, whenever and in whatever mode acquired, from the debts of her husband. The husband, as between himself and his wife, had no vested right in these lands when the constitution of 1874 was adopted, nor, indeed, any interest subsequent to the execution, by his direction, of the deed of 1871, the effect of which deed was, as we have seen, to create a separate estate for her in the property conveyed. It is contended, however, that the constitution of 1868 could not divest the appellee's husband of his marital rights in respect to the property that he caused to be conveyed to his wife in 1871. This contention proceeds upon the ground that immediately upon marriage and birth of issue, an estate by the curtesy vested in the husband, not only in the real prop Opinion of the Court. erty then owned by the wife, but in such as she might acquire at any time during coverture; and that no constitutional or statutory provision could affect his rights, in this respect, even as to property acquired by the wife after the change in the law. We do not concur in this view. It is not sustained by any decision of the Supreme Court of Arkansas to which our attention has been called, or of which we have any knowledge. On the contrary, the cases above cited, while holding that the constitution of 1874 could not affect any interest vested in the husband prior to its adoption, concede, by necessary implication, that, in all other respects, that constitution would control every acquisition of property by a married woman after its adoption. When the constitution of 1868 was adopted, the appellee's husband could have no estate by the curtesy in lands not then owned by her; for, as was said by the Supreme Court of Arkansas in McDaniel v. Grace, 15 Arkansas, 465,483, except when from the nature and circumstances of the real property of the wife she may be regarded as constructively in possession, (as where it consists in wild lands, or it is impossible or impracticable to enter upon them,) marriage, actual seizin of the wife, issue and death of the wife, are all requisite to create an estate by the curtesy; and that the husband was not entitled to his curtesy, according to the common law, unless the wife was seized in fact and in deed. Mercer's Lessee v. Selden, 1 How. 37, 54; Davis v. Mason, 1 Pet. 503, 507; 4 Kent, 29, 30. There was, upon the part of the wife, no seizin of the lands in dispute until 1871, when the title came to her. That it is competent for the State, in its fundamental law or by statute, to provide that all property thereafter acquired by or coming to a married woman shall constitute her separate estate, not subject to the control, nor liable for the debts, of the husband, and that such regulations do not take away or impair any vested right of the husband, is, in our judgment, a proposition too clear to require argument or the citation of authorities to support it. Upon the whole case, we are of opinion that the appellee's husband has no interest in the lands in dispute that may be taken under the execution of the appellants, Allen, West & Opinion of the Court. Bush. The decree in her favor was, therefore, right, unless, as contended, the appellee had a sufficient remedy at law for the protection of her rights. It is not sufficient that she has a remedy at law; "it must be plain and adequate, or, in other words, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity." Boyce v. Grundy, 3 Pet. 210, 215; Watson v. Sutherland, 5 Wall. 74. Now, what remedy at law is adequate to the relief she seeks, and to which she is entitled if these lands constitute her separate estate and may not be taken for her husband's debts? She is in possession, and, therefore, cannot bring ejectment. Must she remain inactive while the sale proceeds, and until the purchaser obtains and has recorded the marshal's deed to her lands, and then bring an action to have the deed cancelled and the sale set aside, as clouds upon her title? It needs no argument to show that the existing levy upon the appellee's land constitutes itself a cloud upon her title, which, if not removed and the proposed sale prevented, will injure the salable value of the lands, and otherwise injuriously affect her rights. In Orton v. Smith, 18 How. 263, 265, the right of those who have a clear, legal and equitable title to land, connected with possession, to claim the interference of a court of equity to give them peace, or dissipate a cloud on the title, is recognized. And such is the established rule in Arkansas, where the general distinction between the functions of courts of law and equity have been maintained. In Branch v. Mitchell, 24 Arkansas, 431, 439, the court said: "When a party has the only or the better legal title to land, as against that which he wishes to put at rest, he may obtain or regain possession by an action of ejectment, if he is out of possession; and it is reasonable that equity should decline to interfere where he may obtain all the relief he needs at law. If he is in possession, then, as he can bring no action at law, it has been held that he may ask the court of equity to remove a cloud upon his title, which makes it less valuable, and may prevent his disposing of it to others." The same principle is recognized in Miller v. Neiman, 27 Arkansas, 233; Chaplin v. Holmes, 27 Arkansas, 414, 417; Crane v. Randolph, 30 Arkansas, 579, Opinion of the Court. 585. In Pettit v. Shepherd, 5 Paige, 493, 501, the chancellor said: "If a court of chancery would have jurisdiction to set aside the sheriff's deed which might be given on a sale, and to order the same to be given up and cancelled, as forming an improper cloud upon the complainant's title to his farm, it seems to follow, as a necessary consequence, that the court may interpose its aid to prevent such a shade from being cast upon the title, when the defendant evinces a fixed determination to proceed with the sale." "It is better," the court said in Gerry v. Stimson, 60 Maine, 186, 189, "to prevent the creation of a fictitious or fraudulent title, than to compel its cancellation or its release after it has been created." So in Hinchley v. Greany, 118 Mass. 595, 598: "The plaintiff is not required to wait until somebody obtains a title under a sale before he can seek his remedy. Even when this remedy [which in that case was a petition summoning the defendant to show cause why he should not bring an action to try his title] may be availed of under the statute, it is not necessarily so adequate and complete as to supersede the remedy in equity." Irwin v. Lewis, 50 Mississippi, 363, 368; Christie v. Hale, 46 Illinois, 117, 122; Merriman v. Polk, 5 Heiskell, 717, 718; Jones v. De Graffenreid, 60 Alabama, 145, 151. For the reasons stated, we are of opinion that the relief asked was properly granted. Decree affirmed. |