ALLEN V. HANKS, 136 U. S. 300 (1890)

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U.S. Supreme Court

Allen v. Hanks, 136 U.S. 300 (1890)

Allen v. Hanks

No. 316

Submitted April 30, 1890

Decided May 19, 1890

136 U.S. 300


A and B intermarried in Arkansas in 1859, during which year a child was born to them alive, capable of inheriting, and died in 1862. In 1864, C died, the owner of estate, real and personal in Arkansas, leaving as sole heirs at law, his father, D, his brother, A, and a sister, E. The two latter became the owners in common of decedent's realty, subject to a life estate in D, their father. In 1870, D died, after which in 1871, A and E agreed upon a partition. A, desiring to vest the title to his share in his wife -- he being then solvent -- conveyed (his wife uniting with him to relinquish dower) to his sister, P, , all his interest in the lands inherited from his brother. By deed of date January 2, 1871, E (her husband joining her) conveyed to A's wife what was regarded as one-half in value of the lands formerly owned by C, including those in dispute in this suit. This deed was recorded May 24, 1875, in the county where A's wife then and ever since resided. No other schedule of it, nor other record nor intention to claim the lands in dispute as her separate property was ever filed by her. After the date of the deed to A's wife, the lands in dispute were cultivated by him as agent of his wife, and in her name, for her and not in his own right. In 1884, his creditors obtained a judgment against him, and another on a debt contracted in 1881, sued out execution, and caused it to be levied upon the lands in dispute, and advertised them to he sold. A's wife brought a suit in equity to enjoin the sale upon the ground that the lands were not subject to her husband's debts, and that a sale would create a cloud upon her title.


(1) The Constitution of Arkansas of 1868 placed property thereafter acquired by a married woman, whether by gift, grant, inheritance or otherwise, as between herself and her husband, under her exclusive control, with power to dispose of it or its proceeds as she pleased.

(2) The deed by E and her husband to A's wife was subject to the Constitution of 1868, which made any property acquired by the wife, chanrobles.com-red

Page 136 U. S. 301

after it went into operation, her separate estate, free from his control.

(3) When the deed of 1871 was recorded in 1875, if not before, the lands in dispute became free from the debts of A, and therefore were not liable for the debt contracted in 1851.

(4) Neither the Constitution of 1868 nor that of 1874 could take from the husband any rights vested in him prior to the adoption of either instrument. But when the Constitution of 1868 was adopted, A had no estate by the curtesy in these lands in virtue of his marriage, for his wife had then no interest in them. In Arkansas, as at common law, except when from the nature and circumstances of the real property of the wife she may be regarded as constructively in possession, marriage, actual seisin, issue, and death of the wife are all requisite to create an estate by the curtesy.

(5) It is competent for a state, in its fundamental law or by statute, to provide that all property thereafter acquired by or coming to a married woman, shall constitute her separate estate, not subject to the control nor liable for the debts of the husband.

(6) It is the right of those who have a clear legal and equitable title to land connected with possession to claim the interference of a court of equity to give them peace or dissipate a cloud on the title.

In equity. The case is stated in the opinion.


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