Della J. Mathy instituted an action for divorce against Joseph Mathy in the chancery court of Garland County on the 19th day of April, 1906, and the case is here on appeal.
The complaint alleges a marriage on May 3, 1885, in Chicago, Illinois, a residence in Arkansas for the statutory period required for divorce, and for cause of divorce assigns cruel treatment and personal indignities. She prays for alimony, attorney’s fees, and for general relief.
On May 23, 1906, Joseph Mathy answered, admitting the marriage and residence in the State of Arkansas, but denies all ■the other material allegations of the complaint. On May 30, 1906, he filed his cross-complaint, alleging that appellee had been guilty of adultery with divers persons named in his cross-complaint.
On June 9, 1906, appellee answered the cross-complaint. She denied adultery on her part, and charged appellant with adultery with various women named by her in her amended bill. Subsequently, several amendments were made to the pleadings, which consisted in additional charges of adultery by each and a denial of the charges by the other.
The chancellor found both parties equally at fault, and therefore - rendered a decree dismissing both the complaint and the cross-complaint for want of equity.
A large amount .of testimony was taken on each side. On account of the vulgar details, we will refrain from making an abstract of the testimony. Besides, it would serve no useful purpose.
A careful examination of the evidence leads us to conclude that, whatever may have been the sins of each against the marriage vows, about the beginning of the year 1905, they confessed their past offenses to each other, and each forgave the other. A reconciliation was had, and the marriage relation was resumed. This amounted to a condonation of past causes of divorce. Womack v. Womack, 73 Ark. 281.
The evidence clearly establishes the subsequent adultery of appellee. On the other hand, we do not think that the testimony shows that appellant has been guilty of adultery since the date at which all past offenses of each party was condoned by the other, nor do we think it sustains the charge of cruel treatment against him during that time. Therefore the chancellor erred in dismissing the cross-complaint of appellant.
On the day that the decree was rendered, the chancellor permitted appellee to amend her complaint so as to conform to the proof, and to ask that appellant be decreed to hold certain property situated in Hot Springs, Arkansas, called the Magnolia Hotel, in trust for her, and that the title to the same be invested in her.
The facts concerning this property as disclosed by the record are as follows: After appellee became enamoured of one Judge Irwin and went to live with him, she claims that she and her mother, in partnership, bought the property in Hot Springs, Arkansas, called the Magnolia Hotel; that the purchase price was $3,3Qp, and that her mother and herself contributed $1,200 or $1,400 towards the payment of it. In any event, the undisputed facts show that the property was purchased for $3,300, and the title was taken in Judge Irwin’s name. After the death of the mother of appellee, and after Judge Irwin had abandoned appellee, he conveyed the property to her by deed. The consideration was $1,100, for which she gave him her note, and also an agreement on her part to pay the balance of the purchase money, which was the difference between the $1,100 and $3,300, the original purchase price. After she returned to her husband in 1902, she conveyed the property to him for a nominal consideration. He paid the note which she had given to Judge Irwin and also the note for the balance of the purchase money, amounting in the aggregate to something over $3,300.
Appellee told appellant the exact condition of affairs; said that she was not able to pay off the incumbrance, and asked him to do so. Appellant agreed to do this if appellee would deed him the property, but not otherwise. Appellee wanted the deed in the name of both of them. Appellant said that he would not invest in the property unless it was deeded absolutely to him, and that he wanted it this way to 'keep her people from getting it if she should die. She told him that she would make a will in his favor to prevent that. He replied that the will was not sufficient. She finally deeded it to him because he did not want her people to get it. This is the version of the transaction as testified to by appellee.
Appellant claims that appellee confessed to him that Irwin had kept the money of herself and mother, and took the title in his own name in violation of his agreement with them. He says that he paid off the incumbrances on the property to the extent of over $3,300, and denies that he told her that he must have the title in his own name because he did not want it to go to her people in case of her death. He found that the property would sell for the amount it would cost to clear off the indebtedness, and then took a deed direct from his wife to himself. .Subsequently he paid off the indebtedness.
“A deed of land by husband directly to his wife, in the absence of fraud, will convey to her the equitable estate, while he holds the legal title as her trustee.” Ogden v. Ogden, 60 Ark. 70. In like manner a deed from the wife to the husband does not convey legal, but only the equitable, title. The present case stands with the legal title in the wife and the equitable title in the husband. The property is in the possession of the husband. Appellee seeks the aid of a court of equity to have the equitable title revested in her, and appellant asks that the legal title be vested in him. At the time of the conveyance, the parties, although formerly estranged, had become reconciled to each other, and the presumption was that their marriage relation would only be dissolved by death. The changed -conditions now are that the property has increased in value, and the marriage relation has been dissolved by an absolute divorce.
Equity will scrutinize more closely a conveyance from the wife to the husband than an ordinary conveyance. On account of the confidential relation and the supposedly greater influence of the husband, the wife’s conveyance may be attended with a presumption against its validity. 21 Cyc. 1293.
“In any transaction by which the husband acquires title to his wife’s separate property, the burden is on him to show it to be fair, and .without any exercise of undue influence, and such as in good conscience ought to bind her.” Pennington v. Acker, 30 Miss. 161; Farmer v. Farmer, 39 N. J. Eq. 211.
The chancellor found in favor of the appellee, and, when tested by the equitable principles above announced, we cannot say his finding was against the weight of the evidence. But we think the case calls for the application of that maxim, which has been regarded as the foundation of all equity, “he who seeks equity must do equity.” It would be inéquitable to restore the property to the appellee, and not require her to return to appellant the amounts he has expended on the property. She should be required to repay him the amount expended by him in removing incumbrances from the property, taxes paid by him, and permanent improvements, if any, made by him, with the legal rate of interest from date of payment, and t'h^se amounts should be credited by the amount of rents received'by him. A lien on the property should be declared to secure the payment of the balance.
For the reasons given, the decree must be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.
The chancellor may, if he deem it necessary, give leave to either party to introduce further evidence in regard to the amounts expended by appellant and the rents received by him on the Magnolia Hotel property.
Opinion delivered November 30, 1908.