Ward v. Ward , 186 Ark. 196 ( 1932 )

STATEMENT BY THE COURT.

Appellant brings this appeal from a decree granting him a divorce and setting the property rights of the parties.

He alleged in his complaint the grounds for divorce and that he and his wife had agreed upon a division of the property, but that she had refused to comply with the agreement, and prayed that her interest in the old home property be divested out of her and the entire title vested in him, in accordance with the agreement.

It appears from the testimony that the parties, who had lived together for some time and were without children, owned a home, lot 12, block 64, Van Buren, which had been conveyed to them as tenants by the entirety; that appellant purchased lot 3 and the N 1/2 of lot 2, block 66, in Van Buren, and erected a house thereon, the property improved being of the value of $4,000 and equaling the value of the old home place. This deed was made to appellee at the request of appellant, and he claimed that they had agreed that he should have the old home place as his separate property while she kept the new home. She denied that there was any agreement for a division of the property, and the testimony showed that any such agreement, if made, was not in contemplation of a separation or divorce proceedings.

The court granted appellant a divorce, and held him entitled to the right to possession and the rents and profits on the old home place during his life, denied his prayer for investiture of the fee thereto in him, and the appeal is from this decree. (after stating the facts). The right of survivorship where the real property is held by the entirety has not been destroyed by our statute (Crawford Moses' Digest, 6232), and it has also been held that the character of such estate by the entirety is not changed by a divorce of the parties. Raulston v. Hall, 66 Ark. 305,50 S.W. 690; 74 Am. St. Rep. 97; Davies v. Johnson,124 Ark. 390, 187 S.W. 323; Woodall v. Woodall, 144 Ark. 159,221 S.W. 463; and Heinrich v. Heinrich, 177 Ark. 250,6 S.W.2d 21.

It is doubtless true, as appellant insists, that this holding is the minority rule, a great majority of the cases holding that the effect of a divorce of the parties is to sever an estate by the entirety and render the parties tenants in common, but our holding has been consistently that a divorce has no such effect, our last case being Heinrich v. Heinrich, supra. As the court could have granted no greater relief, we do not consider it necessary to change our ruling here.

This being true, we do not find it necessary, in view of this holding, there being no cross-appeal, to determine what effect should have been given to the alleged agreement of a division of the property claimed to have been made by appellant and denied by appellee, since both admit that there was no separation of the parties in contemplation at the time of its being made, if it was made.

We find no error in the record, and the decree is accordingly affirmed.

MEHAFFY, J., concurs.