Walker v. Long

• Decision Date: 23 December 1891
• Parties: WALKER v. LONG.
• Court: North Carolina Supreme Court

14 S.E. 299

109 N.C. 510

WALKER v. LONG.

Supreme Court of North Carolina

December 23, 1891

Appeal from superior court, Iredell county; R. F. ARMFIELD, Judge.

Action by Mary A. Walker against J. W. C. Long to recover land. Judgment for defendant. Plaintiff appeals. Reversed.

Robbins & Long, for appellant.

D. M Furches, for appellee.

MERRIMON C.J.

The plaintiff sues alone. It appears that she is a married woman having living children of her marriage with her present husband, capable of inheriting her real property. She alleges that she is the owner in fee, and entitled to have possession, of the land specified in the complaint. On the trial she put in evidence of her title to the land a deed purporting to convey the same to her in fee, executed to her on the 7th day of June, 1883, pending the marriage by her present husband. The defendant (appellee) contends, first that she cannot maintain this action, because her husband is tenant of the land by the curtesy initiate, and he alone can sue to recover possession of the same, and certainly she cannot without suing as party with her husband.

It may be conceded that the tenant by the curtesy initiate could have sued alone for and recovered possession of the lands and the rents and profits, in this state, before the adoption of the present constitution. Houston v. Brown, 7 Jones, (N C.) 161; Wilson v. Arentz, 70 N.C. 670; State v. Mills, 91 N.C. 593; Morris v. Morris, 94 N.C. 613. But that constitution (article 10,§ 6) has wrought very material and far-reaching changes as to the rights respectively of husband and wife in respect to her property, both real and personal, and enlarged her personality and her power in respect to and control over her property. It provides that "the real and personal property of any female in this state, acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations, or engagements of her husband, and may be devised and bequeathed, and, with the written assent of her husband, conveyed, by her as if she were unmarried." This provision is very broad, comprehensive, and thorough in its terms, meaning, and purpose, and plainly gives and secures to the wife the complete ownership and control of her property, as if she were unmarried, except in the single respect of conveying it. She must convey the same with the assent of the husband. It clearly excludes the ownership of the husband as such, and sweeps away the common-law right or estate he might at one time have had as tenant by the curtesy initiate. The strong exclusive language of the clause recited above is that the property "shall be and remain the sole and separate estate and property of such female,"--the wife; and to make the provision more thoroughly exclusive it further provides that such property "shall not be liable for any debts, obligations, or engagements of her husband." Pertinent legislation since the constitution became operative is in harmony with the section above recited. The statute (Code, §§ 1837, 1838) provides that "the savings from the income of the separate estate of the wife are her separate property;" and that the husband shall be, not tenant by the curtesy initiate, but tenant by the curtesy after the death of the wife, in case she die intestate. The husband, as husband, has no property interest or estate in his wife's land during her life-time. But he has an interest as tenant by the curtesy initiate. Thompson v. Wiggins, 14 S.E. Rep. 301, (at this term.) He has, by reason of his relation to her as husband, and his right to have the benefit of her society, the right to go upon her land, and occupy the same freely with her as her husband. And hence, by going to her house and upon her premises for all lawful purposes, he is not a trespasser. He so goes and remains of right, but he has no estate in the property. This court has so, in substance and effect, repeatedly decided. Manning v. Manning, 79 N.C. 293, 300; Cecil v. Smith, 81 N.C. 285; Kirkman v. Bank, 77 N.C. 394. The property in controversy, for the present purpose, must be treated as the plaintiff's. The statute (Code, § 178, subd. 1) provides that the wife may sue alone when the "action concerns her separate property." As we have seen, this action does concern the separate property of the plaintiff wife. He...