{ "id": 1462424, "name": "Roetzel v. Beal", "name_abbreviation": "Roetzel v. Beal", "decision_date": "1938-04-11", "docket_number": "4-5030", "first_page": "5", "last_page": "17", "citations": [ { "type": "official", "cite": "196 Ark. 5" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "132 S. W. 451", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "96 Ark. 540", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541984 ], "opinion_index": 0, "case_paths": [ "/ark/96/0540-01" ] }, { "cite": "13 S. W. 929", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "53 Ark. 279", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911697 ], "opinion_index": 0, "case_paths": [ "/ark/53/0279-01" ] }, { "cite": "30 Ark. 17", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881234 ], "opinion_index": 0, "case_paths": [ "/ark/30/0017-01" ] }, { "cite": "29 Ark. 659", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "31 Ark. 678", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879328 ], "opinion_index": 0, "case_paths": [ "/ark/31/0678-01" ] }, { "cite": "53 S. W. 399", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "67 Ark. 15", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152562 ], "opinion_index": 0, "case_paths": [ "/ark/67/0015-01" ] }, { "cite": "135 S. W. 840", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "98 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1315916 ], "opinion_index": 0, "case_paths": [ "/ark/98/0118-01" ] }, { "cite": "31 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879221 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/31/0576-01" ] }, { "cite": "214 S. W. 63", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "139 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1596387 ], "opinion_index": 0, "case_paths": [ "/ark/139/0469-01" ] }, { "cite": "93 S. W. 2d 319", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 599", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1414887 ], "opinion_index": 0, "case_paths": [ "/ark/192/0599-01" ] }, { "cite": "32 S. W. 2d 621", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 618", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389723 ], "opinion_index": 0, "case_paths": [ "/ark/182/0618-01" ] } ], "analysis": { "cardinality": 800, "char_count": 21751, "ocr_confidence": 0.502, "pagerank": { "raw": 1.1842194125560185e-07, "percentile": 0.5893940148634148 }, "sha256": "fe99f26cc38bf8dc547d385fa006ddd207d86a03972109019f2f36b23ebc59f7", "simhash": "1:ddc794d346e221d1", "word_count": 3877 }, "last_updated": "2023-07-14T16:57:18.765663+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mehaeey and Donham, JJ., dissent." ], "parties": [ "Roetzel v. Beal." ], "opinions": [ { "text": "Smith, J.\nOn December 26, 1928, T. E. Beal and Walker Ladd became ' sureties on the bond of Otis \"Wheeler as administrator of the estate of L. H. Wheeler. The administrator failed to account for and pay over assets which had come into his hands as administrator, and on January 14, 1932, the probate court entered judgment against the administrator and his sureties for $1,-022.41. On appeal, judgment was rendered on December 12, 1932, for the same amount against the administrator and his sureties.\nOn July 30, 1932, Beal executed a warranty deed to his wife conveying the lands here in question for the recited consideration of $3,003.\nThe administrator had paid all the probated demands except that of the Bald Knob Fruit Exchange, Inc. That company .became insolvent and John Q. Adams was appointed receiver. Adams, as receiver, filed suit to set aside the deed from Beal to his wife on the ground that the deed had been executed in fraud of the Fruit Exchange Company, and that relief was granted. Thereafter an execution was levied upon the lands thus uncovered,,, and Adams, as receiver, became the purchaser at the execution sale and received an execution deed from the sheriff, whereupon he satisfied the judgment and decree upon which the execution had issued. On May 9, 1936, Adams, as receiver, conveyed the lands purchased at the execution sale to J. A. Roetzel, who, on \"March 27, 1937, conveyed them to J. A. McKamey.\nBeal died October 3, 1936, leaving no issue, but survived by his wife, who brought suit, making all persons interested parties, to have dower assigned her in the lands which had been sold under the execution. These were not ancestral lands, but were a new acquisition. There were no creditors, and from a decree awarding Mrs. Beal a one-lialf interest in fee simple as dower is this appeal.\nIt is apparent, from the facts stated, that the controlling question in this case is whether the sale of the husband\u2019s land, under a judgment and execution against him, bars the wife\u2019s right of dower therein, upon the husband\u2019s death.\nThere are a large number of cases bearing upon this question, but it would be a work of supererogation to attempt to review them and to point out the distinctions between them. The value of any case from another jurisdiction would depend upon the similarity of the statutes construed to our dower statutes.\nMany cases are cited in the note to \u00a7 174 of the chapter on Dower in 19 C. J. 520. That section reads as follows: \u201cThe wife\u2019s dower right is barred by sale on execution where the common-law right of dower is limited by statute to lands of which her husband died seized or possessed, or where by statute the right of dower does not attach for the purpose of enjoyment until all his debts are paid. Under a statute providing, that no judgment against the husband shall prejudice the wife\u2019s right to dower, her dower right is not divested by sale under a judgment on .a creditor\u2019s bill against the husband to which the wife was not a party, even though a person having a right to a vendor\u2019s lien was made a defendant and was preferred by the judgment.\u201d\nAppellant says this appeal presents three questions, which are stated to be: First, Is appellee entitled to dower; Second, If so, will she take one-third for life under \u00a7 4396, or one-half in fee simple under \u00a7 4421 of Pope\u2019s Digest; Third, Is she not estopped and barred by her conduct and by law from claiming dower at this time?\nDiscussing first the third question raised, it may be said that the widow, if entitled to dower, is not estopped from claiming it now through failure to claim it when the conveyance to her from her husband was uncovered. She could not have claimed dower then, for her husband was alive, and it could not be then known that she would survive him. The purchaser at the execution sale bought subject to the rule caveat, emptor, and took only such title as the judgment debtor owned. Pate v. Peace, 182 Ark. 618, 32 S. W. 2d 621; Citizens Bank & Trust Co. v. Garrott, 192 Ark. 599, 93 S. W. 2d 319.\nThe other two questions will be considered together. One of the cases relied upon for the reversal of the decree is that of Murphy v. Booker, 139 Ark. 469, 214 S. W. 63. In this case the wife of Booker was denied dower, because her husband; who had lost his title, was not thereafter seized of an estate of inheritance, and it was said that to give a right of dower there must be such a right of immediate possession on the part of the husband as to constitute seizin in law. That opinion quotes from the case of Tate v. Jay, 31 Ark. 576, as follows: \u201c \u2018Seizin is either in deed, or in law; seizin in deed, is actual possession ; seizin in law, the right to immediate possession. Unless such seizin existed during coverture there can be no dower, because it is an indispensable requisite to her right to dower, so declared by statute. \u2019 \u201d It will be observed that the indispensable requisite is that \u201cseizin existed during coverture.\u201d\nAnother ease cited in the brief of appellant and strongly urged in our consultation as requiring the reversal of the decree here appealed from is that of McGuire v. Cook, 98 Ark. 118, 135 S. W. 840, Ann. Cas. 1912D, 776. The facts in that case, as stated in the opinion, are as follows: Mrs. Ewing survived her first husband, Thomas Cox, and dower was assigned to her in his estate. The lands thus assigned her were sold by the administrator of Cox\u2019s estate to pay his debts. D. C. Ewing became the purchaser at this sale, and upon confirmation thereof received an administrator\u2019s deed. Mrs. Cox was also widow of Ewing at the time of Ewing\u2019s death, and claimed dower in his reversionary interest in the lands which she held as dower. Ewing had never had seizin of these lands, for the reason that the possession and the right thereto was in Mrs. Ewing as the dowager of her former husband. It is true Ewing and wife occupied these dower lands during their marriage as their homestead, but this possession was referable to the dower interest of Mrs. Ewing as the Avidow of Cox. It was she Avho had possession and the right thereto. Ewing had purchased only the reversionary interest, and his right of possession Avas postponed until the termination of his Arife\u2019s doAver interest in the estate of her former husband. The claim of Mrs. EAving to doAver in those lands was disallowed for the reason that Ewing only had a reversionary interest in the lands. His right to occupy the lands as owner was postponed until the death of his wife, and she survived him, so that never during his lifetime was he seized of the lands. In so holding Judge Frauenthal said: \u201cThe same character of seizin that was required by the common law in the husband is required by our statute in order to entitle the widow to dower\u201d . . . \u201cThe statute in this state, on the other hand, provides that the widow \u2018shall be endowed in fee simple \u2019 of a portion of the real estate, and also expressly limits same to the real estate \u2018of which the husband shall die seized.\u2019 \u201d Ewing was not only not seized of these lands at the time of his death, but he was never seized of them during his life. His wife could not, therefore, have dower. The point decided in that case was that the wife was not entitled to dower in the reversionary estate of her husband, for the reason that he was not seized thereof.\nThe question there involved was not alone that of the character or extent of Mrs. Ewing\u2019s dower in the estate of Ewing, but was whether she had any dower in that estate. It was held that she had no dower interest, for the reason that \u201cDuring all the time he (Ewing) owned the reversionary interest, there was the interposition of a life estate which prevented that-necessary seizin to entitle his widow to a dower therein. He did not die seized of the land, and his widow'was not entitled for that reason to one-half thereof in fe\u00e9.\u201d The dower there claimed was a one-half interest in fee, as the reversionary interest of Dr. Ewing was a new acquisition, and he left no descendants, and there were no creditors. For the reason stated, Mrs. Ewing was not entitled to any estate as dower, as Ewing had never been seized.\nIt was there contended that, while seizin was essential under what is now; \u00a7 4396, Pope\u2019s Digest, it was not essential under act of March 24, 1891 (\u00a7 2709, Kirby\u2019s Digest), which now appears as \u00a7 4421, Pope\u2019s Digest. The opinion says: \u201cIt is claimed that under the provisions of that 4396, Pope\u2019s Digest) the widow is entitled to dower only in \u2018lands whereof the husband was seized of an estate of inheritance at any time during marriage\u2019; and the dower thus given is an estate only for life and of one-third; while under the provisions of \u00a7 2709 (\u00a7 4421, Pope\u2019s Digest) the widow is given one-half of his \u2018real estate.\u2019 It is contended that the term \u2018real estate,\u2019 as thus used in the latter section, is more comprehensive than the expression \u2018lands whereof the husband was seized of an estate of inheritance,\u2019 and includes every interest in land which the husband owned at the time of his death, and that it was the intention of the Legislature by this latter enactment not to create the technical common-law estate of dower, but to provide for the devolution and division of the entire real property owned by the decedent at the time of his death.\u201d After referring to certain cases from other jurisdictions cited in support of that contention the opinion proceeds: \u201cBut we think the statutes of those states are quite dissimilar from o.ur statute on this question. Those statutes either provide that the widow shall take a certain proportion of the deceased husband\u2019s land, without any qualification, or of such land of which the husband died possessed in his own right. The statute in this state, on the other hand, provides that the widow \u2018shall be endowed in fee simple\u2019 of a portion of the real estate, and also expressly limits same to the real estate \u2018of which the husband shall die seized.\u2019 We think that under these express provisions it was manifestly intended that the requisites necessary to constitute dower at common law were also necessary to constitute the estate created by this statute.\u201d After quoting from the opinion in the case of Tate v. Jay, supra, as did the opinion in Murphy v. Booker, supra, Justice Frauenthal proceeded to say: \u201cLikewise, we think that seizin of the husband is a necessary requisite under \u00a7 2709 of Kirby\u2019s Digest to entitle the widow to the dower therein provided, because it is so declared by that statute, which says that she shall be endowed of a certain portion of the real estate \u2018 of which the husband shall die seized.\u2019 \u201d The point discussed and the point decided was that \u00a7 4421, Pope\u2019s Digest had not changed the requirement that seizin was essential to dower.\nThere is nothing in this opinion to impair the authority of the case of Tate v. Jay, supra. Indeed, the opinion quotes with approval from that case, in which case it.was said: \u201cHer right to dower after marriage is absolute, and fixes a lien upon all the lands of which the husband was seized of an estate of inheritance, no subsequent act of his, without her consent, can divest her of it. It is a freehold estate, growing out of marriage, seizin and the death of the husband. It takes by way of lien created by and at the time of marriage, and, when once fixed, is paramount to the claim of creditors and purchasers, without regard to the husband\u2019s debts. (Citing cases.) \u201d\nThe authority most frequently quoted on questions relating to dower is Scribner, and that author says (Vol. 1, Scribner on Dower, 2d Edition, p. 603): \u201cAfter the right of dower has once attached, it is not in the power of the husband alone to defeat it by any act in the nature of an alienation or charge. It is a right attaching in law, which, although it may possibly never become absolute, (as if the wife die in the lifetime of the husband), yet, from the moment that the facts of marriage and seizin concur, it is so fixed on the land as to become a title paramount to that of any person claiming under the husband by subsequent act. The alienation of the husband, whether voluntary, as by deed or will; or involuntary, as by bankruptcy or otherwise, will confer no title on the alienee'as against the wife in respect of her dower, but she will be entitled to recover against such alienee, (except as to damages), in the same manner, as she would have recovered against the heir of the husband, had the latter died seized.\u201d\nIt would hardly be contended that Mrs. Beal did not have a dower interest but for the act of 1891, which appears as \u00a7 4421, Pope\u2019s Digest. Does that enactment deprive a widow of a dower interest in the land sold under an execution levied upon it as the property of her husband?\nTo answer this question it is essential that we consider what the law was when the act of 1891 was passed. There was approved February 28,1838, a general statute on dower, which appears as Chapter 52 of the Revised Statutes under the title \u201cDower.\u201d There have been comparatively few amendments of this chapter. Section 1 of this chapter appears as \u00a7 4396, Pope\u2019s Digest. Section 16 appears as \u00a7 4413, Pope\u2019s Digest. Section 28 appears as \u00a7 4429, Pope\u2019s Digest. These sections have never been amended.\nSection 1 provides that \u201cA widow shall be endowed of a third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.\u201d\nSection 28 reads as follows: \u201cA widow shall be endowed of lands sold in the lifetime of the husband without her consent in legal form against all creditors of the estate.\u201d\nSection 16 reads as follows: \u201cNo act, deed or conveyance, executed or performed by the husband without the assent of his wife, evinced by the acknowledgment thereof in the manner required by law, shall pass the estate of a married woman; and no judgment or decree confessed or recovered against him, and no laches, default, covin or crime of the husband shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto.\u201d\nThere has never been any amendment of this \u00a7 16, and if it is still the law, as we think it is, the wife\u2019s right of dower is not barred by any judgment against the husband or any proceedings thereunder.\nSection 20 of chapter 52 of the Revised Statutes provided for dower in the slaves owned by the husband and in his personal property, which need not be considered, as this case involves only the question of dower in lands.\nSection 21 of this chapter 52 relates to dower in real estate. This section appeared as \u00a7 2592 of Mansfield\u2019s Digest, and it was this section of Mansfield\u2019s Digest which was amended by the act of March 24, 1891 (Acts .1891, page 116), and which, as thus amended, appears as \u00a7 4421, Pope\u2019s Digest.\nThis section 2592, Mansfield\u2019s Digest, is copied, with the amendments of 1891 inclosed in parentheses so that it may readily appear what changes were effected by this amendatory act: \u201cIf a husband die, leaving\u2019 a widow and no children, such widow shall be endowed (in fee simple) of one-half of the real estate of which such husband died seized (where said estate is. a new acquisition and not an ancestral estate) and one-half of the personal estate, absolutely and in her own right, (as against collateral heirs; but, as against creditors, she shall be endowed with one-third of the real estate in fee simple if a new acquisition and not ancestral, and of one-third of the personal property absolutely, Provided, if the real estate of the husband be an ancestral estate she shall be endowed in a life' estate of one-half of said estate as against collateral heirs, and one-tliird as\u2019 against creditors.) \u201d\nIt will be observed that \u00a7 21 defines the interest given the wife in the real estate \u2018 \u2018 of which such husband died seized,\u201d and that the amendatory act of 1891 uses the identical language in defining the wife\u2019s dower interest in the real estate \u201cof which such husband died seized.\u201d The phrase, \u2018 \u2018 of which such husband died seized, \u2019 \u2019 means in one enactment just what it does in the other. This amendatory act of 1891 changes the interest which the wife takes as dower, but in the amendatory act, as well as in the original act, she has dower (whatever it may be) in the real estate \u201cof which such husband died seized.\u201d\n. There is manifested no intention in the act of 1891 to amend any section of the Dower Statute except \u00a7 21, which became \u00a7 2592 of Mansfield\u2019s Digest, and the amended act gave the wife dower in the real estate \u201cof which such husband died seized, \u2019 \u2019 as did the original act which it amended. This amendatory act was intended only to define what the dower right should be in the real estate \u201cof which such husband died seized\u201d under the different conditions there enumerated, and did not amend, repeal or in any manner impair \u00a7 .16 of chapter 52 of the Revised Statutes, appearing- as \u00a7 4413 of Pope\u2019s Digest. If this section of the Digest is still the law, as we think it is, then, to paraphrase it, \u201cNo act, deed or conveyance, executed or perfoimed by the husband without the assent of his wife, which assent must be evinced by the acknowledgment of the wife in the manner required by law, shall pass her dower interest; and no judgment or decree confessed or recovered against him, and no laches, default, fraud or crime on his part shall prejudice the right of the'wife to her dower or preclude her from the recovery thereof, if otherwise entitled thereto.\u201d\nIf this section is still the law, and means what it plainly says, the sale of Beal\u2019s land under the execution against him did not and does not operate to defeat the claim of his widow to her dower interest therein.\nThe act of 1891 (\u00a7 4421, Pope\u2019s Digest) defines that interest where the land is a new acquisition, and also where it is an ancestral estate; in cases where there are children, and in other cases where there are no children, and in cases where there are.creditors, and in other cases where there are no creditors; but in no case is it provided that she shall not be endowed of some interest as dower. She has that interest (whatever it may be, depending upon the contingencies named) in real estate of which her husband died seized, which, so far as the wife\u2019s dower is concerned, includes \u201clands sold in the lifetime of the husband without her consent in legal form against all creditors of the estate.\u201d Section 4429, Pope\u2019s Digest.\nIn the case of Bowers v. Hutchinson, 67 Ark. 15, 53 S. W. 399, Hutchinson and his wife entered into a separation agreement, whereby, in consideration of certain sums of money paid and to be paid the wife, she contracted to release all claim for dower in her husband\u2019s estate. In holding invalid this agreement, which was in form a deed, Judge Battle said: \u201cThe deed which constituted the defense in this action was without effect as a relinquishment of dower in real estate. The statutes of this state provide that a widow shall have dower in \u2018 all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.\u2019 To relinquish her dower in any land of her husband the statutes require her to join in the conveyance thereof, and to voluntarily appear before a proper court or officer, and, in the absence of her husband, declare that she had of her own free will signed the relinquishment of dower for the purposes contained and set forth in the conveyance, without compulsion or undue influence of her husband. Under these statutes this court has repeatedly held that \u2018a married Avoman can relinquish dower only by joining with her husband in a deed of conveyance to a third person.\u2019 Pillow v. Wade, 31 Ark. 678; Witter v. Biscoe, 13 Ark. [422] 423; Stidham v. Matthews, 29 Ark. 659; Countz v. Markling, 30 Ark. 17; Smith v. Howell, 53 Ark. 279, 13 S. W. 929.\u201d\nIn the case of Fourche River Lumber Co. v. Walker, 96 Ark. 540, 132 S. W. 451, it was held that the Avidow of a deceased mortgagor is not barred of doAver in the mortgaged lands by a decree of foreclosure and sale thereunder, though she Avas a party to the suit, unless her right to dower was directly put in issue.\nIt was generally recognized that, through execution sales, mortgage foreclosures, and conveyances by the husband in which the wife had not joined, and otherwise, there were many tracts of land in Avhich the wife had inchoate rights of dower, which were in possession of others, but whose possession could not ripen into perfect title because the wife\u2019s dower had not been relinquished in the manner provided by law. This condition no doubt led to the enactment of act 315 of the Acts of 1923, barring the inchoate right of dower where the husband had been barred of his title for fifteen years, or more, which period of time was shortened by act 84 of the Acts of. 1935 to seven years (\u00a7 8919, Pope\u2019s Digest).\nHere, the widow has done no act which divests her of her dower, and seven years have not expired since the-death of her husband.\nWe conclude, therefore, that the widoAv was properly allowed dower in the lands of,her husband sold under the execution against him, and as the lands Avere a new acquisition, and there were no children or creditors, she was entitled, under \u00a7 4421, Pope\u2019s Digest, to be endowed in fee simple of one-half of the real estate sold at the execution sale. This was the decree of the court below, and it is, therefore, affirmed.\nMehaeey and Donham, JJ., dissent.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Culbert L. Pearce, for appellants.", "Herbert Moody and Brundidge & Neelly, for appellee." ], "corrections": "", "head_matter": "Roetzel v. Beal.\n4-5030\nOpinion delivered April 11, 1938.\nCulbert L. Pearce, for appellants.\nHerbert Moody and Brundidge & Neelly, for appellee." }, "file_name": "0005-01", "first_page_order": 23, "last_page_order": 35 }