64 S.E. 510 | N.C. | 1909
This action was brought to recover the value of five bales of cotton which have been sold, the parties agreeing that the proceeds shall be held to await the determination of this case. (550) Judgment was entered for the defendants, and the plaintiff appealed.
The facts are that the plaintiff and Charlotte Leak were married in 1867, she being then seized of land in Anson County, known as the Brown Creek tract and containing 878 acres, which is described by its metes and bounds in the record. They had five children, the oldest of *452 them having been born in November, 1868. In December, 1905, the said Charlotte Richardson and her husband leased the land, by a written agreement, for the term of five years, to R. J. Beverly, who agreed to deliver, as rent, five bales of cotton, on the first day of November of each year during the term. Charlotte Richardson died in October, 1907, leaving a will, by which she devised and bequeathed all of her property and estate to persons other than the plaintiff. The lessee delivered to Charlotte Richardson, just before her death, 2,004 pounds of cotton, it being part of the rent for the year 1907, and after her death the lessee delivered the remainder of the cotton in full payment of the rent for that year.
The question presented for our consideration is whether the plaintiff, the husband of Charlotte Richardson, or the defendant, John S. Richardson, Jr., her executor, is entitled to receive the proceeds of the sale of the cotton.
The plaintiff contends that by virtue of the marriage and the ownership of the land by his wife he acquired a vested interest, as tenant by the curtesy initiate, in all crops grown upon the same, without regard to the fact that the first child of the marriage was born after the adoption of the Constitution of 1868, and that he is therefore entitled to the rent due by the terms of the lease; while the defendants assert title to the rent upon the ground that, by the Constitution of 1868, the land, with its rents and profits, became the separate property of the wife, the testatrix of the defendant Richardson, as the plaintiff's right or interest in the land as tenant by the curtesy was a contingent one until the birth of issue, which occurred after the adoption of the Constitution, and therefore there was no interference with any vested right of the plaintiff by the provision of that instrument that the property of the wife acquired before marriage shall belong to her as her (551) separate estate, with the power to dispose of it by will, and also by deed, with the written consent of her husband, as if she were unmarried. Constitution, Art. X, sec. 6. We must therefore determine what is the husband's interest in his wife's property by the rules of the common law, as modified by the Constitution, if, under the facts of this case, any change in those rights as they existed at common law has been wrought by that instrument.
Blackstone says: "There are four requisites necessary to make a tenancy by the curtesy: marriage, seizin of the wife, issue, and death of the wife." He is referring here, of course, to a tenancy by the curtesy consummate. In regard to the time when the husband first becomes vested with an interest or estate in his wife's land he says: "As soon, therefore, as any child is born, the father began to have a permanent interest in the lands; he became one of the pares curtis, did homage to *453
the lord, and was called tenant by the curtesy initiate; and this estate, being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant." 2 Blackstone, 127. This is in harmony with the former decisions of this Court. As is said in Morris v. Morris,
It is true that at common law the husband, upon the marriage, was seized in right of his wife of a freehold interest in her lands during their joint lives, and that either as tenant by marital right or as tenant by the curtesy initiate he was entitled to the rents and profits, and might lease or convey his estate, and it might be sold under execution against him. But radical changes in this respect were effected by the act of 1848 (Revisal, sec. 2097). Construing this act, in Jones v. Coffey,
It appears in this case that there was a written lease, signed by the plaintiff and his wife, but there was no privy examination of the latter, as required by the act of 1848 (Revisal, sec. 2097), and also by the Revisal, sec. 2096. The lease was therefore void as to the wife, and passes no interest to the husband in the rents and profits of the land, if otherwise he would have acquired an interest.
Our conclusion is that there was no error in the judgment of the court.
Affirmed.
Cited: Jackson v. Beard,
(555)