Moore v. Warren

255 S.W. 306, 160 Ark. 629, 1923 Ark. LEXIS 322

• Court: Supreme Court of Arkansas
• Decided: November 5, 1923
• Status: Published

Opinion

Humphreys, J.

The sole question involved on this appeal is whether a divorce a vinculo obtained by a wife will bar an independent suit for the recovery of property rights in the estate of her divorced husband.

This is a suit in ejectment, brought in the circuit court of Crawford County, by appellee against appellant, Ms divorced wife, wlio liad remarried, to recover possession of Ms homestead wMcli she continued to occupy after she had obtained a divorce from him. The title to the property was in appellee. In the divorce suit appellant failed to ask or obtain a division of appellee’s property. In this suit appellant filed a motion to transfer the cause to the chancery court in order that the property rights between herself and her former husband might be adjudicated, alleging that, through mistake and inadvertence, she failed in the divorce suit to pray that her dower and homestead rights in her former husband’s estate be adjudged to her, and that the chancery court had failed to adjust the property rights between them. Over the objection and exception of appellant, this motion was overruled by the trial court.

Appellant contends for a reversal of the judgment because the trial court refused to transfer the cause to the chancery court for the purpose of reopening the divorce suit and having the lands divided in accordance with §3514 of Crawford & Moses’ Digest. In construing this section it was said in the case of Taylor v. Taylor, 153 Ark. 206: “Our statute allows one-third of the husband’s estate to be assigned to the wife when she obtains a divorce, and not afterwards. She would have no interest in the nature of dower in her husband’s estate after the divorce was granted, and, if she could enforce the right by independent proceedings after the divorce was granted, great confusion and uncertainty would result. * * * If she did not ask and obtain the relief when the decree of divorce was granted to her, the matter became res judicata.” The, wife’s right of homestead is as dependent upon the marital relationship as her dower interest. Both rights cease after the divorce is granted.

The doctrine in Wood v. Wood, 59 Ark. 441, and Taylor v. Taylor, supra, was reiterated and approved in the recent case of Dawson v. Mays, 159 Ark. 331.

No error appearing, the judgment is affirmed.

Mr. Justice Hart dissents on the ground that appellant continued in the possession of the homestead after she had obtained her divorce, and that this prevented the rule announced above from governing in this case.