The appellee, T. J. Spurlock, sued appellant, Mary J. Spurlock, his wife, for divorce, alleging adultery with several parties. She denied all the charges against her, and made countercharge of cruel treatment, and asked that a divorce be granted her on that ground. She makes these allegations in pleadings and evidence in regard to their property interests: That she and her husband were engaged in the hotel and mercantile business at Evening Shade, and sold out there and re-invested in like enterprises at Mammoth Spring, Spurlock conducting the mercantile business and she the hotel business; that the first hotel burned, and Spurlock collected about $1,000 insurance, which he used in his grocery and other enterprises, and which did not go to her; that a mortgage to a building and loan association for $1,000 was placed on the property to pay for the rebuilding of the hotel; that she paid said mortgage herself, and her husband paid no part of it; that she purchased a lot of hogs and cattle and hotel furniture, and erected a sample room, all from her separate earnings. In general, she charged that she ran the hotel, earned all it made; that it was understood she had that business, and her husband the mercantile; that she supported both from the hotel business and helped him, and he did not help her; and in justice and equity should be the sole owner of the hotel property. On the other hand, Spurlock charges that he ran the business with her help in looking after .the servants when he was not there. The hotel was their home. Even after their separation, both lived there in separate rooms.
The chancellor granted the husband the divorce on grounds of adultery in the wife; found the hogs, cattle and hotel furniture and the sample room were the separate property of Mrs. Spurlock; found against her as to the hotel property; and she appeals; and Spurlock appeals from so much of the decree as finds any of the property to be Mrs. Spurlock’s.
1. The first question is as to the adultery charges against Mrs. Spurlock and the countercharge of cruel treatment against Mr. Spurlock.
The appellant objects to certain testimony tending to prove adultery after the suit was filed. The cause of divorce must exist before the commencement of the suit. Kirby’s Digest, § 2678. But her relations with this co-respondent were shown to have commenced before the suit, and evidence of adultery with him after the bringing of the suit would be admissible, not as a cause of divorce, but as tending to prove a lustful rather than innocent character to her relations with him prior to the suit. The chancellor found her guilty with him before the commencement of this action. The preponderance of the evidence is against Mrs. Spurlock on both these issues, and it would serve no useful purpose to review it, and the decree as to the divorce is affirmed.
2. The chancellor found that the hogs, cattle and hotel furniture and the sample room built on the hotel grounds were the separate property of Mrs. Spurlock, and the court is of opinion that the weight of the evidence sustains that finding, and the decree on that issue is affirmed on the cross-appeal.
3. Mrs. Spurlock claims that the hotel property was purchased with money derived from her separate business of hotel keeper before and after it was rebuilt; that no part of her husband’s means, earnings or services have acquired that property. Mr. Spurlock denies all of this, and it can not be said that the preponderance is with her, and the finding of the chancellor is against her on this. But as to this fact the preponderance of the evidence is decidedly with Mrs. Spurlock: That she ran the hotel as a separate business; that her husband was no more service to her in that business than she was to him in the grocery and mercantile business. Each was conducting a business enterprise on his or her own account; and she worked hard and with fair success in the hotel business, and from the proceeds of the hotel business the mortgage of $1,000 upon the hotel property was paid by her in monthly installments, except a balance of a few hundred dollars, and that she discharged with money borrowed from friends. While Mr. Spurlock denies most of these facts, yet Mrs. Spurlock is so strongly corroborated as to these matters that the court is convinced the above statement is the truth of the case. The question is, what are the equities on the facts above stated? It is a question of first impression in this State, and probably elsewhere, for most States have statutes giving the divorce courts discretion in dividing the property. The statute in-this State (Kirby’s Digest, § 2684), as construed in McNutt v. McNutt, 78 Ark. 346, does not reach to this case.
A married woman may carry on a business venture, and the earnings therefrom are her own. Kirby’s Digest, § 5214. A husband has such an interest from the marital relation in the wife’s homestead that he may invest his means in improving it, up to the maximum value, and the homestead character of the property will withdraw what he invests in it from the reach of his creditors. Pullen v. Simpson, 74 Ark. 592.
The right of subrogation to one paying a debt for another is extended to sureties, to junior incumbrancers, to creditors paying an incumbrance on their debtor’s property, 10 legatees and joint heirs relieving the inheritance of liens, to life tenants freeing the fee of a mortgage, to widows discharging debts against their husbands’ estates, and to many other analogous instances. Harris on Subrogation, § § 13, 14, 696-697. The theory is that the payment has been made by one occupying a relation to the property other than that of a stranger or volunteer, who, on account of such interest, discharges a mortgage or other lien against the property. Equity, to save an injustice being done, will subrogate the one discharging the mortgage 01 lien to the rights which the mortgagee or lienholder would have had if he (the payer) had not discharged the mortgage or lien. The Tennessee court applied this doctrine in favor of a deserted wife who had paid off a mortgage on an abandoned homegtead of the husband. Roach v. Hacker, 2 Lea, 633. And this application is approved by a learned writer on the subject. Harris on Subrogation, § 705.
Here the homestead which sheltered both the parties was incumbered. The wife’s earnings, which she could have invested elsewhere and retained beyond question as her own, she invested in the property which the law protected from the reach of creditors and gave to her as a home for life against heirs and creditors. Certainly, her interest was'as substantive as a life tenant’s or any of the other enumerated persons to whom subrogation has been accorded upon discharge of incumbrances against the property in which the interest inheres.
It is true that it is her own misconduct which has caused he severance of the marriage tie and the failing of these tangible rights inhering in the husband’s homestead. But it is inequitable for this misconduct to deprive her of the right of subrogation which equity accords to one protecting a property interest by discharging a lien upon the property. It would be contrary to good conscience for the husband to profit by the wife’s earnings discharging this mortgage on his property when she devoted them to that purpose, not as a gift to him, but to protect a property in which she had an interest hardly less complete than his own.
The court is of opinion that so much of the decree as denied appellant relief as to the hotel property shall be reversed, and the cause remanded, with directions to enter a decree subrogating her to the rights of the mortgagee whose mortgage she discharged, and it is so ordered.