Felkner v. Tighe

Smith, J. The bill in this case alleges that Margaret Tighe, a married woman, was seized and possessed of a tract of forty acres of land, in her sole and separate right; and that on the eighteenth of February, 1878, she agreed and bound herself in writing to sell and convey the same. to Eelkner, for the consideration of $400 ; whereof $20 was paid in cash, $280 were to be paid on the first of March, 1878, and the remainder in one year from the date of said contract; that Eelkner was let into possession under said contract; but before the installment of $280 became due, Mrs. Tighe had died, and payment of that sum had been made to her administrator; that tender of the remaining $100 had also been made to said administrator, and a demand of a conveyance. This bill was exhibited against the administrator, husband and unknown heirs at law of the deceased woman, to compel them to specifically execute her contract for the sale of the premises. In it the plaintiff offered to pay the remainder that was due upon said purchase. The husband pleaded the coverture of Mrs. Tighe in bar of the relief sought by the bill, but did not offer to restore the consideration that had been received. To the answer setting up this defense, a demurrer was overruled, and the jffaintiff, standing upon his bill, his suit was dismissed. married Woman: Not bound by title ^4V ° Uni' It is the settled doctrine of this court, that the disabili-17 ties which the common law has thrown around married women for their protection, remain, except in so far as they have been removed by statute. Hyner v. Dickinson, 32 Ark., 776; Wentworth v. Clark, 33 ib., 432; Connor v. Abbott, 35 ib., 365; Stilwell v. Adams, 29 ib., 346. It was also well settled that previous to the adoption of our present Constitution, the executory contract of a married woman to convey her land, was not binding upon her. Stidham v. Matthews, 29 Ark., 650; Wood v. Terry, 30 ib., 385; Rogers v. Brooks, 30 ib., 612. The Constitution provides {art. 10, sec. 7), that “ the real and personal propei’ty of any femme 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 femme sole.” In Roberts and Wife v. Wilcoxon & Rose, 36 Ark., 355, it was held that she might convey her lands under this provision, without her husband joining, and without private examination and acknowledgment of the deed. In Bishop’s work on the Law of Married Women, vol. 1, sec. 601, it is said : “ Though the statutes authorize femmes covert to convey their lands, and this authority ought to be construed to comprehend everything properly belonging to the contract of actual sale, yet it does not qualify them to enter into a valid executory agreement to sell; for a prior agreement to sell, is not an essential part of the actual selling. * * * In a State like Pennsylvania, where the thing agreed to be done, is looked upon by the tribunals as done, it might take effect as a conveyance. But in the other States generally, and in England, no executory agreement to convey, formal or informal, with or without the concurrence and joinder of the husband, will bind the wife. Not even a court of equity will give such an agreement effect, by decreeing its fulfillment against her.” The cases which hold that a married woman’s contract to convey her separate statutory estate are valid, and enforceable in equity against her, have, so far as they have come under our observation, been decided under statutes which confer upon her the power to contract generally, in reference to such estate. Barker v. Hathaway, 5 Allen, 103; Love v. Watkins, 40 Cal., 547; Kingsley v. Gilman, 15 Minn., 59. Our constitutional provision is silent as to this power. Its existence, therefore, can be derived only from inference. In this connection, it is argued that a sale by bond for title is not an executory contract; that in this State and other Southwestern States, it is in such general use, where land is sold upon credit, as to have become one of the recognized forms of conveyance; and that a court of equity looks upon the purchaser as it does upon a mortgagor — that is to say, as the real and beneficial owner of the fee, while the vendor is only entitled to the purchase-price. It is, perhaps, a sufficient answer to such arguments to refer to the plaintiff’s attitude in this suit. If the contract has been already executed, why does he sue for specific execution ? But in truth, his bond for title does not purport to convey any estate. It has not the operative words of a present grant. After reciting the sale and the terms of such sale, it contains an agreement to convey the legal title upon receipt of the remainder of the purchase-money. Mrs. Tighe might have made an absolute deed to her vendee, and, for security, could have reserved a purchase-lien on the face of the deed, or have taken a mortgage back. But she could not enter into an agreement to convey at a future day, which would bind either her or her heirs. Payments reclaimed. However, the disability of coverture is a privilege and a ^ x 0 shield, and must not be converted into an engine of fraud. The Circuit Court should not have dismissed the bill, but, under the prayer for general relief, should, if the proper parties were before it, have charged the payments already made upon the land. It is a familiar principle in equity that purchase-money, prematurely paid, constitutes a lien upon the land upon which it was paid. Mackrett v. Simmons, 15 Ves., 344; Adams’ Eq., 128, and cases cited; Burgess v. Wheats, 1 W. Black, 150; Same Case, 1 Eden, 211; Pilcher v. Smith, 2 Head., 208; Pierson v. Lunn, 10 C. E. Green, 390. against unlíeirs.0 w “ -&-s Uüs cause must be sent back, we call the attention of counsel to the fact that proceedings against unknown heirs are strictly construed. Gray v. Trapnall, 23 Ark., 510. 3. Compensa-tion for mentis °Ye’ The record does not show any 'constructive service by publication of notice, nor the necessary affidavit to procure an order of publication. The bill is not even sworn to. The plaintiff will not be entitled to compensation for' imA ^ provements upon the premises, further than as a set-off* against rents and profits during his occupancy. Reversed, and remanded for further proceedings.