Roberts v. Lisenbee

• Decision Date: 28 February 1882
• Citation: 86 N.C. 136,41 Am.Rep. 450
• Court: North Carolina Supreme Court
• Parties: W. J. ROBERTS and wife v. REUBEN LISENBEE and wife.

86 N.C. 136

41 Am.Rep. 450

W. J. ROBERTS and wife

v.REUBEN LISENBEE and wife.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Spring Term, 1881, of BUNCOMBE Superior Court, before Gilliam, J.

The action was brought to Madison superior court by the plaintiffs, William J. Roberts and wife Kate P. Roberts, against Reuben Lisenbee and wife Lucinda Lisenbee, for slanderous words spoken by the wife of the defendant of and concerning the wife of the plaintiff; and at fall term thereof the case was removed upon the affidavit of the defendant to the county of Buncombe, where it was continued from term to term until fall term, 1881, when the defendant Reuben Lisenbee suggested the death of his wife, the codefendant, since the last continuance of the cause, and moved for judgment that the action abate. The cause was then continued until spring term, 1882, when it came on to be heard upon the motion, and it was ordered and adjudged that the action abate, from which judgment the plaintiffs appealed.

Mr. J. H. Merrimon, for plaintiffs .

Messrs. C. A. Moore and H. B. Carter, for defendant .

ASHE, J.

It has been the policy of our law-makers since 1868, and even before that date to some extent, to emancipate the wife from many of the disabilities of coverture, resulting from the common law doctrine of the merger of the legal existence of the wife in that of her husband.

This legislation commenced with the act of 1848, which restricted the common law initial rights of the husband as tenant by the courtesy, in the lands of his wife acquired by her since the first Monday of March, 1849; then the act of 1871-'72, styled the “marriage act,” (Bat. Rev., ch. 69) which invested the wife with many of the rights of a feme sole over her separate property, so that she may devise and bequeath her separate property; and all the property she acquires before or after marriage is her separate estate by virtue of section 6, article 10 of the constitution. She may make certain contracts with her husband which are binding upon her. She may sue alone when the actions concerns her separate property, and under some circumstances may even sue her husband without the intervention of a next friend. But while the wife has been thus legislated into a state of independence of her husband, as regards her separate estate, the legislature as a sort of compensation to the husband has relieved him from responsibility for the debts of the wife contracted before marriage, and from liability for her torts committed while being in a state of separation from him.

By the common law the husband was held liable to third persons for injury done by his wife, when they afforded ground for a civil action, though done without his knowledge or instrumentality; and this, not because there was any delict on the part of the husband, but from the necessity of the thing, arising from the incapacity of the wife to be sued without him. For as her legal existence was incorporated in that of her husband, she could not be sued alone, and if the husband was protected from responsibility, the injured party would be without redress. Hence the rule of the common law, that the husband and wife are both liable and must be joined in an action to...