dissenting. I concur with the majority opinion in affirming the chancellor insofar as granting the divorce to Mr.. Spruill is concerned. But I must respectfully dissent from the affirmance of the trial court’s holding with reference to the real estate involved. It seems to me that the court is abandoning a rule followed by it for over eighty years, and upon which courts and the bar have relied for all that time.
In Ward v. The Estate of Ward, 36 Ark. 586, decided in 1880, it was held that the law would not imply a promise on the part of the wife to repay advances made by her husband in improving her real property, it being presumed that they were gifts.
In Hamby v. Brooks, 86 Ark. 448, 111 S. W. 277, decided June 1, 1908, it was held that no presumption would be raised in such circumstances that a husband intended to create a trust in his own favor.
In cases where the advances were by purchase of land by the husband, with conveyance made to the wife, it was held that in order to overcome the presumption of a gift and impress a trust in favor of the husband, the evidence must be clear and convincing and so positive as to leave no doubt of the fact. Hall v. Cox, 104 Ark. 303, 149 S. W. 80; Wood v. Wood, 100 Ark. 370, 140 S. W. 275; Carpenter v. Gibson, 104 Ark. 32, 148 S. W. 508; Wood v. Wood, 116 Ark. 142, 172 S. W. 860; Parks v. Parks, 207 Ark. 720, 182 S. W. 2d 470.
It is true that it has been held that such a presumption is rebuttable by preponderating-- evidence of antecedent or contemporaneous declarations and matters showing that the wife took as trustee and not beneficially, if they are fairly connected with the transaction, or are facts which existed so soon thereafter as to form part of the transaction. Della v. Della, 98 Ark. 540, 136 S. W. 927; Poole v. Oliver, 89 Ark. 578, 117 S. W. 747; Johnson v. Johnson, 115 Ark. 416, 171 S. W. 475; Parks v. Parks, supra.
The presumption that the making of improvements by a husband on his wife’s lands is a gift to her is recognized in later cases. See, for example, Aycock v. Bottoms, 201 Ark. 104, 144 S. W. 2d 43.
This court has heretofore, under these circumstances, refused to impress a trust on land in favor of a husband. O’Hair v. O’Hair, 76 Ark. 389, 88 S. W. 945. This is essential to the award of a lien on the wife’s property as was done by the chancellor below.
These principles were all reviewed and applied in Fine v. Fine, 209 Ark. 754, 192 S. W. 2d 212, when that part of the decree of the trial court awarding’ the husband judgment for expenditures made in improvements on the wife’s property was reversed by this court. The circumstances in that case would seem to me to present stronger equities in favor of the husband than are found here. There the husband had received serious ánd permanent injuries, incapacitating him. The greater portion of $1,130.00 deposited in the wife’s bank account by him from a recovery of compensation for his injuries —the exact amount of his accident insurance — was expended in improving his wife’s property. The husband claimed that he had entered into a partnership agreement with his wife whereby they would construct some rent houses on her property in order to have an income to live on in their old age. The wife claimed a gift to her. This court found the testimony in conflict and the evidence short of the “clear and convincing” effect the law requires. This case was cited as authority in Smith v. Smith, 227 Ark. 26, 295 S. W. 2d 790, where a chancellor ’s award of a judgment and lien in favor of a husband for such expenditures was reversed. Its holding has not at any time been overruled or modified.
The actions of Spruill here are no different from those of the husband in Simpson v. Thayer, 214 Ark. 566, 217 S. W. 2d 354. Dr. Simpson had made substantial improvements and paid taxes on property previously purchased by him, deeds for which had been taken in the wife’s name. In an action by which the heirs sought to have the title divested from the wife, this court said that these expenditures were all referable to his natural desire to care for and manage his wife’s property.
I have found no evidence whatever in this record to make it appear that Spruill had any desire whatever to do anything except provide a home for his wife, however unsatisfactory she may have turned out to be. I cannot find any testimony that would show anything upon which the husband’s actions were based other than a request by an unhappy Mrs. Spruill that the parties came to Arkansas because she didn’t want to live with him in Oklahoma. This, to me, falls far short of the “clear and convincing” evidence heretofore required.
The majority opinion does not in any way distinguish this case from Fine v. Fine, 209 Ark. 754, 192 S. W. 2d 212. The fact that Spruill took no affirmative action to place the title to the lot in the wife is no distinction. Neither did Fine. Nor did Smith in Smith v. Smith, 227 Ark. 26, 295 S. W. 2d 790.
The majority find support for the decree of the chancellor in Stephens v. Stephens, 226 Ark. 219, 288 S. W. 2d 957, in which this court did not even pretend to overrule any of the principles theretofore followed, hereinabove set out and so well reviewed in Fine v. Fine, supra. But many distinctions can be found between that case and this. There the realty was acquired by the joint efforts of the parties and the husband made', the down payment. He invested his entire life savings. After the construction of the home the parties realized that the title, being in the wife’s name, would not pass after her death as they desired, so they made a joint will, each leaving the other a life estate in any property owned and entered into a contract to keep the will in force. This court found evidence to rebut the presumption of gift in the will and contract. Nothing of that sort exists here. On the contrary, it appears that Mrs. Spruill has a crippled leg and is unable to work, a condition that existed at the time of the marriage; that she only has an income of $50.00 p.er month from a rental house in North Little Rock from which she must pay real estate taxes, insurance and upkeep and $20.00 per month on a mortgage to secure a loan of $1,100.00 for the house built on the property in question.
“Rules of property” have always been highly regarded by this court and it has been said that the overruling of such rules should rarely be done and, when done, it is with a great deal of trepidation. Gibson v. Talley, 206 Ark. 1, 174 S. W. 2d 551. In the cited case this court approved the following definition of a rule of property given in 54 C.J. 1110:
“A settled legal principle governing the ownership and devolution of property; the decisions of the highest court of a state when they relate to and settle some principle of local law directly applicable to title. In the plural, those rules governing the descent, transfer, or sale of property, and the rules which affect the title and possession thereto.”
The principles reviewed in Fine v. Fine, 209 Ark. 754, 192 S. W. 2d 212, seem to fit this definition well. If they are not actually “rules of property”, they are virtually such. Although we should approach their overuling with trepidation, it would be far better if we would overrule them rather than abandon them.
For the reasons stated above, I respectfully dissent from the majority opinion.