Thompson v. Wiggins

• Decision Date: 23 December 1891
• Citation: 14 S.E. 301,109 N.C. 508
• Parties: THOMPSON v. WIGGINS.
• Court: North Carolina Supreme Court

14 S.E. 301

109 N.C. 508

THOMPSON v. WIGGINS.

Supreme Court of North Carolina

December 23, 1891

Appeal from superior court, Robeson county; MCIVER, Judge.

Action by S. O. Thompson against C. W. Wiggins to recover rent. Judgment for plaintiff. Defendant appeals. Reversed.

French & Norment, for appellant.

T. H Sutton and Black & Adams, for appellee.

CLARK J.

The question presented is the right of the husband to sue for the rents of the wife's real estate when the marriage had taken place since the constitution of 1868. That constitution provides (article 10, § 6) that the real and personal property of any female, whether acquired before or after marriage, "shall be and remain the sole and separate estate and property of such female." The rents arising from her real estate are, therefore, the wife's, and an action therefor must be brought by the wife, she being the real party in interest. Code, § 177. It is not even necessary that the husband be joined as a party plaintiff, (Code, § 178, subd. 1, ^[1] much less can he sue alone. The fact that the defendant here had paid the rent for the two previous years to the husband is evidence of agency, which would usually protect the defendant if he had paid the rent again to the husband, but would not authorize the husband to sue for the rent, as the action must be brought in the name of the principal,--the real party in interest. Besides, such agency, if it existed, had been terminated by the insanity of the wife. The action can only be maintained by a guardian of the lunatic wife.

The cases which recognize the husband's right to sue alone for the land, or for the rents and profits by virtue of his tenancy by the curtesy initiate, are all cases where the marriage took place prior to the constitution of 1868. Wilson v. Arentz, 70 N.C. 670; Jones v Carter, 73 N.C. 148; Morris v. Morris, 94 N.C 613. Houston v. Brown, 52 N.C. 161; Teague v Downs, 69 N.C. 280; Jones v. Cohen, 82 N.C. 75; and State v. Mills, 91 N.C. 581,--were also decisions as to the effect of the act of 1848 upon tenancy by the courtesy initiate without reference to the later action of the constitution of 1868 upon it. Tenancy by the curtesy consummate remains as at common law. Code, §§ 1838, 1839; Houston v. Brown, supra. The husband may sell such interest, (Long v. Graeber, 64 N.C. 431;) and it is liable to sale under execution against him after his wife's death, (McCaskill v. McCormac, 99 N.C. 548, 6 S.E. Rep. 423.) By virtue of the act of 1848, and the further modifications made by the constitution of 1868, the tenancy by the curtesy initiate is stripped of its common-law attributes, (Walker v. Long, 14 S.E. Rep. 299, and Jones v. Coffey, 14 S.E. Rep. 84, both at this term,) till there only remains the husband's bare "right of joint occupancy with his wife, with the right of ingress and egress," (Manning v. Manning, 79 N.C. 293,) and the right to the curtesy consummate contingent upon his surviving her. This interest it is that is forbidden to be sold by Code, § 1840, until it...