
    Dyer v. Arnold, et al.
    I. Husband and Wife: Right to property'purchased with wife's funds.
    
    A homestead purchased by the husband with money given to the wiie during the Coverture, and coming to his possession, belongs to him; and so, also, does personal property so purchased, and cannot be screened from his debts by the scheduling of it as her separate property.
    3!. Same. Property rights of wife under Constitution of 1868.
    
    Under the Constitution of i868 a wife could acquire and hold personal property, but it was not protected from her husband’s debts until scheduled.
    APPEAL from White Circuit Court in Chancery.
    Hon. J. N. Cypert, Circuit Judge.
    
      
      Goody, for appellant:
    The property was the wife’s ; never reduced into possession by the husband. 14 Ark., 604 ; 16 lb., 154.
    The wife, after the Act of 1875, and before appellee’sjudgment, scheduled the property which had been purchased by the husband with her means. 33 Ark., 611; 23 Texas,. 180; 2 Bishop on Married Women, see. 101.
    The laws of another State are presumed to be the same-with our own. 14 Ark., 603. But it would be the same-under common law principles. - 30 Ark., 79; Act 1875, Ad. Bess., p. 172.
    After scheduling the presumption is that the husband used the property as agent of the wife. (See Act.)
    
      J. W. House, for appellee :
    The property on marriage became fully. vested in the-husband. 8 Ark., 310; 9 lb., 202; 15 lb., 180; 19 lb., 66 ; 25 lb., 223 ; 30 lb., 79.
    The burden of proof, of showing different law in Tennessee, is in plaintiff. 15 Ark., 180
    She was estopped by her conduct in allowing the husband to manage and control the property.
   English, C. J.

On the fourth of August, 1877, John W. Arnold,- a merchant of West Point, White county, obtained a judgment against J. H. Dyer, a farmer of that-vicinity, before a Justice of the Peace of Eed Eiver township, in said county, for $335.53, debt, damages, etc. On the fourteenth of December, of the same year, an execution was issued -upon the judgment to James L. Brewer,. Constable of the township, and by him “levied on about-five acres of cotton in the patch, and two hundred pounds in the pen; fifteen acres of corn in the field, and eight or ten bushels in the crib ; one ton of millet; two mare mules ; wagon and harness ; one buggy ; sixteen head of cattle ; seventy head of hogs; and all farming tools ¿ household and kitchen furniture,” as the property of defendant in the execution, and advertised them for sale.

It appears that Arnold, the plaintiff in the execution, was a dealer in general merchandise, and during the years 1874 and 1875 sold to Dyer, the defendant in the execution, dry goods, groceries and family supplies. ' Partial payments were made in money and cotton, and a note given by Dyer for balance, and the judgment was for principal and interest of the note.

On the seventeenth of December, 1877, Mrs. Judie E. Dyer, wife of J. H. Dyer, filed a bill on the Chancery side of the Circuit Court of White county against John W. Arnold, plaintiff in the execution, and James L. Brewer, the Constable, claiming the property levied on, and praying that the sale thereof be enjoined.

An interlocutory injunction was granted, and on the final hearing upon bill, answer and depositions, it was dissolved. The bill dismissed, Mrs. Dyer appealed, and obtained here an order for an -ancillary injunction to stay the sale of the property until the cause could be heard and determined on her appeal.

Mrs. Dyer alleges in her bill that on the twenty-eighth of October, 1876, .she owned, as separate property, and scheduled in the office of the Clerk of the Circuit Court of White county: “ Two dark bay mules ; one wagon ; one set of harness ; fourteen head of cattle ; fifty head of hogs ; four turning plows; five shovel plows ; five cotton hoes; three feather beds : three mattresses ; four bedsteads ; one bureau ; one clock; one sewing machine ,- one dining table ; one cooking stove; one safe; six chairs; one trunk, and bed clothing,” and exhibits a certified copy of her schedule.

She also alleges that all of the property levied on, ex-copt the buggy, is her property, ‘ ‘ and the same as scheduled by her, including the issues and proceeds arising therefrom, and produced with the same upon her account, and as her sole and separate property.”

She further alleges that the crop of cotton and corn levied on was grown upon the homestead of herself and her husband in White county.

When or how she acquired the property scheduled by her, the bill does not allege, nor is anything more alleged than as above of the homestead.

The defense was that the crop was produced by the husband on land owned by him; that the scheduled property belonged to him when the schedule was filed; that he had contracted the debt in judgment, and others, on faith of the property, representing it to be his, and it was afterwards scheduled by the wife to-shield it from and defraud his creditors.

AS TO THE HOMESTEAD CROP.

I. The cotton, corn and millet were not in the wife’s schedule. She claims that the crop of cotton and corn were exempt, because grown upon the homestead of herself and husband, and produced with her means.

B. K. Rogers deposed that about the first of July, 1873, he sold to J. H. Dyer the southwest quarter of section 18, T. 6, N. R. 5, W. for $1000, and made to him a deed for the land ; that Dyer did not represent to him that the money paid to him for the land was his wife’s, but bought as any other individual; that he took possession of the land early in the yóar 1874, and had occupied it ever since.

Mrs. Dyer deposed that she was married to J. H. Dyer after she was of age, in Lauderdale county, Tennessee ; he had nothing; after her marriage she received from her mother, who had been her guardian, about $1,400 left her by her grand-mother; she and her husband continued to live, with her mother, and he engaged in farming for' over six years after their marriage, and she gave him money to spend when she wanted anything, and to loan out. He did not loan out all the money, but would loan out two, or three, or four hundred dollars at a time. They moved from Tennessee to Jackson county, in this State, (bringing $920 with them in money), in February, 1871, where he engaged in farming for two years before they moved to White county, and “made a right smart of money.” They brought about $2000 to White county. Mr. Dyer brought $1800 of it to White county to ■ buy land, and bought the place they lived on, (though he did not spend all of it for the land), and had the title of it made to himself, but talked of having it made to her.

It is manifest, from the evidence, that the homestead was the property of the husband, and not of the wife, or their joint property. There was no evidence to prove that the cotton and corn grown upon the homestead, gathered and ungathered, were the property of the wife. They were, no doubt, as the Court below found, the property of the husband. The Constable levied on about five acres of cotton and fifteen acres of corn in the field of the homestead. The levy was made on the fourteenth of December, and after the crops were matured.

Whether an ungathered crop is the subject of execution, or if it is, whether the owner of a homestead may claim an unsevered crop produced by him upon it as exempt from execution, the homestead being exempt, are questions not presented in this case. The husband, the owner of the homestead and the crop, is not claiming an exemption. It is the wife who filed the bill.

II. The Court below found, from the evidence, but part of which is stated above, that the property levied on (that scheduled by the wife, as well as the cotton and corn produced on the homestead) was the property of the husband, and not of the wife ; and notwithstanding 'the expressions of the wife, and her witnesses, in their depositions, that the property belonged to her, the facts stated by them, and other witnesses, warranted the Court in finding against her claims.

The court found that the money left the wife by her grand-mother, came to the possession of the husband after their marriage in Tennessee, and thereby become his; and if all the scheduled property was bought with that identical money, which is not probable fx'om the evidence, it belonged to him when scheduled. Most of it was purchased after they moved to this State.

No statute of Tennessee barring the husband’s common law right to the personal property and money of the wife on reducing them to possession was in evidence. See Tatum v. Hines, 15 Ark., 180. Property afterwards pui-chased by him with the money, or its fruits, would also be his. Ferguson et al, v. Moore and wife, 19 Ib., 379.

It is probable, from the evidence, that most of the scheduled property was purchased after Dyer and wife came to this State, and before the adoptioix of the present Constitution, (1st November, 1874), axxd when the Constitution of 1868 was in force.

Under Section 6, Article 12, of the Constitution of 1868, Mrs. Dyer could acquire and hold personal propexty, but was n°k protected agaixxst the debts of her'husband scheduled. Humphries v. Harrison, 30 Ark., 79; Berlin v. Cantrell, 33 Ib., 611.

If the, property in question was purchased with her money, and for her, as she insists, she should have scheduled it before her husband contracted debts on faith of it, aixd it was afterwards too late. Berlin v. Cantrell, Supra; Howell v. Howell, Ad., 19 Ark., 344; Beeman and wife v. Cowser et al, 22 Ib , 432.

We have not overlooked the fact that this was a bill to enjoin the sale of ordinary personal property under execution, but there was no objection to the bill on that ground in the Court below, and the cause was heard on the merits, and the bill dismissed. We need not, therefore, consider the question of jurisdiction. See Sanders v. Sanders et al, 20 Ark., 610, modifying Lovette and wife v. Longmire, 14 Ib., 339.

Affirmed.  