Erwin v. Puryear , 50 Ark. 356 ( 1887 )

CocKRiLL, C. J.

At the time of the intermarriage of the appellants, in 1866, the wife was seized in fee of the land in controversy. The conveyance by which she acquired the title did not exclude the common law marital rights. In May, 1873, the husband sold the land, the wife joining in the deed apparently for the purpose of' relinquishing dower. This action of ejectment was instituted in 1886, by the husband and wife against the pur-'dhaser, from their vendee to recover the land. There was a verdict and judgment for the defendant.

It is conceded in the argument that the wife did not •convey her estate, and her counsel argues that the husband had none to convey, because the constitution of 1868 and the act ©f April 28th 1873, made the land her separate property, and excluded the common law marital interest. The case of Neelly v. Lancaster, 47 Arle., 175, is relied on to sustain the wife’s right to recover. But that case differs from this, as Skryock v. Cannon, 39 Ark., 434, does from Criscoe v. Hambrick, 47 Id., 237. That is, the marital rights having attached before the passage of the ¡act of 1873 and the adoption of the constitution of 1868,' the subsequent laws did not rob the husband of his vested interest. It was so held in the cases above cited and others.

In Tiller v. McCoy, 38 Ark., 91, the same point was ruled, though it would seem that the real question for determi-aation in that case was, whether the creditor (not the fmsband) had a vested right which the subsequent laws affected, Hitz v. National Bank, 111 U. S., 722.

Affirm.