Edmonds v. Edmonds

• Decision Date: 25 September 1924
• Citation: 124 S.E. 415
• Parties: EDMONDS . v. EDMONDS.
• Court: Virginia Supreme Court

124 S.E. 415

EDMONDS .

v.EDMONDS.

Special Court of Appeals, of Virginia.

Sept. 25, 1924.

Error to Corporation Court No. 2 of Norfolk.

Action by Bessie C. Edmonds against Maurice L. Edmonds. Judgment for plaintiff, and defendant brings error. Affirmed.

Jas. G. Martin & Bro., of Norfolk, for plaintiff in error.

E. R. F. Wells and John Vaughan Groner, both of Norfolk, for defendant in error.

CHICHESTER, J. The facts in this case present a novel proposition in Virginia jurisprudence. They are undisputed so far asthey are material to a decision of this controversy.

Maurice L. Edmonds and Bessie C. Edmonds were married many years ago. They are still husband and wife, never having been divorced. The wife is the owner, by gift from her husband, of a certain lot of ground in Norfolk, city upon which the husband erected a two-apartment house; one apartment being built for a home for the occupancy of both. This apartment was occupied as a home by the husband, the wife, and their son, their only child, for over nine years. In September, 1922, the wife deserted her home and her husband, taking their infant child with her. She has declared her intention never to return to the husband or to permit her husband to live with her. The husband is willing and anxious for his wife to return to him and the home they occupied together. In November, 1922, Mrs. Edmonds instituted an action of unlawful detainer against her husband to recover possession of the one room in the apartment which he occupies. She has legal possession of the remaining apartment and collects the rents. Upon the trial of the case there was a verdict for the plaintiff, and judgment was entered thereon by the court. Upon the trial court's refusal to set the verdict aside as contrary to the law and the evidence and without evidence to support it, the husband applied for and obtained a writ of error from one of the judges of the Supreme Court of Appeals.

The following errors are assigned in the petition for a writ of error:

(1) The court erred in not setting aside the verdict as contrary to the law and the evidence and as without evidence to support it; and in not sustaining the motion of defendant to set aside the verdict on these grounds.

(2) The court erred in granting the instruction asked by the plaintiff.

(3) The court erred in refusing the instruction asked by the defendant.

(4) The court erred in refusing to permit defendant to prove positively that, when plaintiff deserted him and the home, in September, 1922, she did so without any cause or excuse.

(5) The court erred in striking out all the evidence on behalf of defendant as to the agreement between him and his wife as to the defendant's being permitted to occupy or live in the apartment house in question.

It is not necessary to take up in their order the various assignments of error. The facts of the case and the questions presented at the trial involve a discussion of a husband's rights in his wife's realty, conveyed to her absolutely and without condition, under the circumstances above set out, in which the defenses to the wife's rights to recover possession thereof were: First, that the hus band's marital rights preclude a recovery under the circumstances; second, that the (husband erected the dwelling house for himself and his wife as a home on the wife's land; third, that the wife deserted the home without cause or excuse; and, fourth, an alleged contract, under the terms of which the husband claimed the right to occupy the home in question for his lifetime, as set out in the fifth assignment of error, supra.

The first defense involves construction of section 5134, Code 1919, the first section of what is known as the Married Woman's Act. At common law the wife's property was under the absolute management and control of the husband. But in practically all the states, in varying degrees, the common-law rule has been modified and in some entirely abrogated. The Virginia statute (section 5134, Code 1919), as Judge Cardwell said, in effect, in Moreland v. Moreland, 108 Va. 93, 60 S. E. 730, has gone as far as the statute of any other state with respect to the rights of married women. Indeed, it has now wiped aside every vestige of control the husband ever had under the common law, and all his rights as husband except as to curtesy. It declares:

"A married woman shall have the right to acquire, hold, use, control, and dispose of property, as if she were unmarried, and such power of use, control, and disposition shall apply to all property of a married woman which has been acquired by her since April fourth, eighteen hundred and seventy-seven, or shall be hereafter acquired: Provided, however, that her husband shall be entitled to curtesy in her estate other than her equitable separate estate when the common law requisites therefor exist, and he shall not be deprived thereof by her sole act; but neither his right to curtesy nor his marital rights shall entitle him to the possession or use, or to the rents, issues, and profits of said real estate during the coverture; nor shall the property of the wife be subject to the debts or liabilities of the husband. A married woman may contract and be contracted with, sue and be sued, in the same manner and with the.same consequences as if she were unmarried, whether the right or liability asserted by or against her shall have accrued heretofore or hereafter, " etc.

The effect of this statute is to give the wife as full control over the property during the coverture as her husband has over his. She may sue her husband as if he were a stranger, Pannill v. Coles, 81 Va. 380; Moreland v. Moreland, supra; De Baun v. De. Baun, 119 Va. 85,. 89 S. E. 239; Alexander v. Alexander, 85 Va. 353, 7 S. E. 335, 1 L. R. A. 125. The revisors of the revisers of the Code of 1919, when they came to deal with section 5134, in order that there might, thereafter, be no doubt of the total abolition of the husband's common-law rights, added immediately after "but neither his right to curtesy, " the following significant words, "nor his marital rights, " to language which of itselfseemed to have eliminated the husband's previous rights. The language "nor his marital rights" would seem but to emphasize and clarify, to make certain, the first few lines of the act—

"A married woman shall have the right to acquire, hold, use, control, and dispose of property, as if she were unmarried, " etc.

It follows that a husband in Virginia may be a trespasser upon his wife's lands whenever she is not occupying them, if he goes there against her will or her commands; that she may prosecute him for criminal trespass; that she may dispossess him if he is in possession: or may hold him to account in connection with any transaction with reference to her lands as if he were a stranger. His right to curtesy and his marital rights give him no more power or authority over his wife's property than if he were a total stranger.

Cases similar to the instant case have arisen in other jurisdictions, and the decisions of the courts in the different states have not been uniform. Neither are the statutes uniform. There are two lines of decisions. Neither has questioned the right of the wife to control her own property where there were statutes similar, or nearly similar, to our statute, but on grounds of public policy it seems, where the wife's real estate had been occupied jointly by the husband and wife as a home, and where there is no express provision in the statute excluding the husband from all rights as such, one line of authorities has accorded the husband the right to occupy the premises, not only with the wife, although against her will, but also even if the wife deserts the home and her husband without cause. The leading case representing this line of authorities is Manning v. Manning, 79 N. C. 293, 28 Am. Rep. 324. In this case the wife was residing on the premises at the time she brought action against her husband for possession of the premises. The court gave tbe wife possession, but stated that, while the husband was without authority to in any wise control the property, he had the right of occupancy with the wife.

A later case (State v. Jones, 132 N. C. 1043, 43 S. E. 939, 61 L. R. A. 777, 95 Am. St. Rep. 688) accorded the husband the right of occupancy where the wife had deserted her home and husband without cause.

The Constitution of North Carolina, art. 10, § 6, provides that the property of any female, whether acquired before or after marriage, "shall be and remain the sole and separate * * * property of such female." This language is not as broad or as comprehensive as that used in our statute. The right to acquire, etc., property as if she were unmarried would seem to exclude every possible or conceivable right the husband could have except curtesy, and it is fully as far reaching as the language used in the North Carolina Constitution without that above refered to added by the revisors. Nothing is expressly said there of the right of possession or use by the husband, however much it would seem to follow that he has no such right. But our statute carries no such doubt, certainly since the revision of the Code. The husband expressly has no such right because of his relation as husband. This makes the husband a stranger to his wife so far as it seems possible for language to make him as to her property. If he has a right to go upon her premises and jointly occupy them with her, it is solely by virtue of the fact that he has a right of access to her because of his marital rights. He expressly has none to her property because of his marital rights. If she is not on the premises, his right of occupancy, his right of ingress and egress, would seem to cease, if she withholds her consent to his going there. His right of ingress and egress would be to and from her, wherever she might be. It is difficult therefore to see how the husband, under our statute, can have any right of occupancy of the wife's real...