Smith v. Yell, 4 Ark. 293 (1842)

Smith and Wife, and Others, vs. Yell.

The case was argued here by Trupnall & Cocke, for the appellants, and by Fowler, contra.

By the Court,

Dickinson, J.

The appellee insists that the decree was interlocutory, and did not become final until after the expiration of the first three days of the next September term of the Court. Sec­tions 15, 21, 22, Rev. Code, 160, 161, all relate to the service of pro­cess upon the defendants, and what notification shall be considered sufficient to authorize the bill to be taken as confessed, and an interlo­cutory decree entered. Sec■ 24 declares, that “ no exceptions or plea shall be filed after an interlocutory decree; but, if the defendant appear, within the first three days of the next term after such decree is entered, and show good cause for not before appearing, the decree may be set aside, and the defendant allowed to file his answer, or demur to the bill.” Sec. 137, p. 174, authorizes the Circuit Court to grant an appeal from any final decision or decree, only during the term at which it is made; and the Supreme Court, or a judge thereof, in vacation, upon inspection of the record, may make an order grant­ing an appeal at any time within one year after the making of the final decision, order, or decree. It is evident, that the extension of the time to the first three days in the next term before the decree shall become absolute, is but a privilege, of which the defendant can avail himself or not,-as he thinks proper. ' No further action of the Circuit Court is necessary to make the decree absolute. And if the party deeming hitnself aggrieved,,fails to. take an appeal at the same term in which it is made, his only relief is, by an application to the Su­preme Court, or a judge thereof, in vacation. The objection to the appeal, as to time, is not tenable.

We shall pass by the irregularities in entering up the decree, and! proceed to determine whether the bill contains any equity upon its face.

Do the facts stated in the bill authorize this decree, or entitle the complainant to equitable relief? In this case, the bill states that the husband expressly assented to the conveyance to his wife, and caused it to be made to her, at his own instance and request, as a matter of mere grace and favor. The property being vested in her, and she dying without issue, and without a re-conveyance to her husband, of course, the fee remained unaltered, and he is only entitled to receive his share in the distribution. There is no principle of equity, that we are aware of, that will make the deed enure to the benefit of the husband,' upon the ground of his having paid the purchase money. It was a mere gift on the part of the husband to the wife, grpwing out of motives of regard and attachment; and, consequently, the title to the property was vested in her, in the same manner as if she had acquired it from any other source. The authorities upon this point are explicit. Coke Lit. 356. Doug. 435. 2 Com. Dig. 223, 224. The allegation, that the complainant conveyed other property to the heirs of his wife, furnishes no ground for relief. The bill does not state that they accepted the same in consideration of the interest in the four half lots, or that they ever agreed to relinquish their title to the same.

Decree reversed, and case remanded, with instructions to allow complainant to amend his bill, if leave be asked; if not, to dismiss, with costs.