
    Milwee v. Milwee.
    1. Married Woman: Not bound by title bond.
    
    A married woman’s executory contract to convey land, if not a mere nullity, is voidable at her election.
    2. Same : Her deed: Joinder of husband.
    
    It is not necessary that a husband join in his wife’s deed of her land. It is good without him.
    3. Husband and Wife : JSis interest in her land.
    
    Milwee, in consideration of marriage, conveyed to his intended wife certain town lots in Loeksburg, “to her, her heirs and assigns forever, to her and their own use, benefit and behoof, with full power to her to grant, bargain, sell and devise the same at will, in as full and complete a manner as if she were sole.” The marriage occurred in 1872. In 1878 they separated, and she sold him the lots on time and executed bond to convey upon payment of the purchase money. Afterwards, upon his failure to pay, she sold and conveyed to another party, who had notice of the prior sale to her husband. In an action of ejectment by the last purchaser, held, that her bond for title, if not a mere nullity, was voidable at her election, and whatever interest the husband acquired in the premises by the intermarriage, was swept away by the deed to the plaintiff.
    
      APPEAL from Sevier Circuit Court.
    Hon. H. B. Stuart, Circuit Judge.
    
      B. B. Battle for appellant.
    A bond for title by a married woman is void. (.Felkner v. Tiglxe, 39 Ark., 357.) The deed is good and valid, although the husband did not join in the execution thereof. (Roberts v. Wilcoxson, 36 Ark., 355.) The statute and Constitution does not limit a married woman’s power to convey her real estate to any particular purpose or consideration. (She need not acknowledge a consideration.) 35 Ark.,480.
    
    Although appellee was in possession of the land at the time his wife conveyed, she could convey as she could have done if she had been in possession. Gantt’s Digest, sec. 834-
    
   Smith, J.

In the year 1872, the appellee, in consideration of a marriage thereafter to be celebrated between himself and a Mrs. Dixon, conveyed to her parts of certain lots in the town of Locksburg. The deed expresses that the lots are to be held to her, her heirs and assigns forever, to her and their own use, benefit and behoof, with full power and authority to her to grant, bargain, sell and devise the same, at any time she may think proper, in as full and complete a manner as if she were a single woman. The marriage took place in 1872, and the parties resided on the lots until 1878, when they separated. Arbitrators were called in to divide the property between the husband and wife, and their award was, as to the particular property now in controversy, that the husband should make his two promissory notes, each for $100, payable to his wife on the first day of January, 1879, and 1880, respectively, the same to be liens on the premises until payment. The notes were accordingly made, and Mrs. Milwee executed a bond obliging herself to reconvey the. lots to her husband when the notes were paid. In July, 1880, the notes remaining unpaid, Mrs. Milwee sold and conveyed the land to the appellant, who brought ejectment.

The answer set up that the husband had been in possession of the property all the time, and that he did not join in the execution of the deed to appellant. Furthermore, that he held the obligation in writing of his wife to convey the lots to him, and that, independently of contract, he was entitled to the possession and control of his wife’s real estate.

The cause was transferred to equity. The Circuit Court found that the purchase of thelots by the husband at the time of the separation, was valid and obligatory upon the wife, and that the purchase notes were binding upon the husband and collectable by process of law. It therefore decreed that the plaintiff, having notice of the defendant’s rights, acquired no estate by his purchase.

We decided, in Felkner v. Tighe, 39 Ark., 357, that a married woman could not bind herself by an executory contract to convey her land. If this is true, with regard to contracts entered into with strangers, a fortiori, it applies to those made with her husband. Mrs. Milwee’s bond for title, if not a mere nullity, was voidable at her election.

It was no objection to Mrs. Milwee’s deed to the appeltibat her husband did not join in the execution thereof. Roberts v. Wilcoxson, 36 Ark., 355.

There is no question of curtesy initiate in this case, because there is no proof that any child has been born of this marriage. And whatever interest the husband acquired in the prernises by the intermarriage, was swept away by the wife’s conveyance.

The decree below is reversed, and a judgment will be entered here in favor of the appellant for the recovery of the land and rents from the twenty-eighth of July, 1880, at the rate of fifty dollars per year.  