44 N.C. 30 | N.C. | 1852
The feme plaintiff owned the land in fee simple, and intermarried with the other plaintiff, who took possession, and there was issue born alive. Afterwards, the defendant entered upon the land, and cut many timber trees. The action is case "in the nature of waste," for the injury to the inheritance. The defendant insists — (31) first, case is not the proper action; secondly, the action is barred by the statute of limitations, notwithstanding the coverture.
A reversioner or remainderman could not bring a writ of waste against a stranger, because privity of estate was necessary to support the action. Hence, anciently, if a stranger broke the close of one having the particular estate, and besides injuring him by "treading down his grass," taking away his crop, etc., also committed an injury to the inheritance, by cutting timber trees, tearing down houses, etc., the reversioner or remainderman was allowed to bring a writ of waste against the particular tenant; and he, in trespass quare clausum, besides damages for the immediate injury, was allowed to recover damages by way of reimbursement for his liability, on account of the injury to the inheritance. This was found, in many cases, to bear hard on the particular tenant, and the remedy was frequently an inadequate one for the reversioner or remainderman. For these reasons, it has been settled for upwards of a century, that the latter may bring case in the nature of waste, for the injury to the inheritance; and the former, trespass quare clausum, for the injury done immediately to him. 1 Chit. Plead., 50, 71; 2 Saund. Rep., 252, B. n., 7.
Upon this principle it is clear, where an injury is done after the death of the wife, the husband, as tenant by the curtesy, may in trespass quareclausum, recover for the immediate injury; and the representative of the wife may bring case, "in the nature of waste," for the injury to the inheritance.
On the part of the plaintiffs it is insisted that the principle applies, when the injury is done in the lifetime of the wife, after issue born; *46 for that, upon the birth of issue, the husband becomes tenant by the curtesy initiate, and is seized in his own right of a particular estate for life, which is separated by the act of law, leaving the inheritance as a reversion, of which the husband and wife continue to be seized in right of the wife. This proposition is denied on the part of the defendant; for whom it is insisted that notwithstanding the birth of issue, there is no separation of the estate, and the husband and wife continue to be seized of the whole in right of the wife. So the case turns upon the single question: Has a husband, after issue, any estate in his own right?
(32) Whether the husband has any estate in his own right before the birth of issue, is a question not now presented. But we think it clear, that upon the birth of issue, he becomes, by act of law, entitled in his own right, to a separate estate for his life, and holds the reversion with his wife, in her right.
The authority of my Lord Coke is express. After issue, the husband receives homage and does homage alone, forfeits the land for treason or felony, and may by feoffment or bargain and sale, pass an estate for his own life; "for he is seized of an estate for his own life, in his own right." Coke Lit., 67, A. All the elementary writers concur in treating this matter as settled, and give to the husband's estate a name — i.e., tenant by the curtesy initiate, as fully recognized and as familiar as that of tenant by the curtesy. McQueen on Husband and Wife, 27. In fact, by reason of the husband's having this separate estate in his own right, and being also seized with his wife of the inheritance in her right, he has a greater control over the land than after he becomes tenant by the curtesy. He is not punishable for waste, or liable to forfeiture for making a feoffment in fee; and in the latter case, the estate of the wife was discontinued until remedied by statute. On the same ground, the incumbent of a benefice, being seized in his own right of an estate for life, and of the inheritance in right of his church, was not punishable for waste, etc.; and his feoffment in fee created a discontinuance at common law. It is settled in our courts, that the estate of the husband may be sold under execution, or by bargain and sale without joining the wife; and the purchaser takes an estate for the life of the husband, although the wife be living. Fagan v. Walker,
The defendant's counsel, pressed by these authorities, fell back upon a distinction — i. e., although the husband by his act may separate the estate, yet it is not separated by act of law, so long as it continues in him. This distinction is not supported by any authority, and (33) is at variance with the fact that an estate for his life may be passed by bargain and sale, or by sale under an execution. These conveyances operate by act of law, and pass nothing except what rightfully belongs to the bargainor or the debtor, as his own separate estate.
By way of further illustration, if husband dies, the growing crop belongs to his personal representative as emblements. This supposes him to have a separate estate in his own right; for if he held the estate as a whole, with the wife in her right, at his death she takes the land, and, of course, all that is a part of it. A trespasser takes away the growing crop — the husband is the party injured; for it is his crop, and the action of trespass q. c. f. should be in his own name. Several old authorities were cited to show that he may join the wife; Cro. Car., 419; Jones, 367; Hob., 189. In Frosdich v. Sterling, 2 Mod., 269, it is said these cases warrant no more than that the wife may be joined, not that of necessity she must. But admit the wife may be joined, it proves nothing, because, to exclude the idea of a separate estate, it is necessary to show that the wife must be joined, for if the husband may sue alone, it is on the ground that he has a separate estate in his own right.
The cases in Comyn's Digest, under title, "Baron Feme," when husband must sue alone — when he may join the wife — when he must join the wife — which are also cited in Bac. Abrid., "Baron Feme," page 500, evidently conflict; and it is impossible to deduce any principle from them. In way and wife v. Bidgood, 2 Black. Rep., 1236, they are called a "farrago of cases." This is no doubt because of the fact, that at the time most of them were decided, the principle that a reversioner or remainderman might bring "case in the nature of waste," against a stranger for an injury to the inheritance was not established; consequently, where an injury was done directly to the husband by destroying his crop, and also to the inheritance by cutting timber trees, inasmuch as no action of waste could be brought, he was ex necessitate allowed, by joining the wife, to recover in trespass quare clausum fregit, not only for the immediate injury to him, but also for the injury to the inheritance; in the same way as any particular tenant might (34) recover, not only for the immediate injury, but also for the injury to the inheritance, by way of reimbursement for his liability over. *48 So that, if the husband sued alone, he recovered damages for the immediate injury. If he joined his wife, besides these damages, he also recovered damages for the injury to the inheritance. But after the principle was established that the reversioner might sue a wrongdoer in case "in the nature of waste," the necessity no longer existed; and the practice of allowing the wife to be joined (which had originated in that necessity) no longer obtained, and the cases in which it had been allowed were considered of doubtful authority. It was said, there was no more reason for allowing the husband by joining his wife to recover in trespass for an injury to his crop, and also for an injury to her inheritance, than there was for allowing a tenant for life to join the reversioner, and so recover for an injury to both in one action; because the husband might sue alone in trespass for the injury to his crop, and join his wife in case for the injury to her inheritance.
Suppose a stranger injures the crop and also the inheritance; the husband brings trespass in the name of himself and wife for both injuries; the husband dies; the action as to the crop must abate, for it belongs to his representative; or the wife dies — then the action as to the injury to the inheritance must abate, for that belongs to the wife's representatives. And if in the one case, the husband is allowed to proceed for his part of the injury, and in the other the wife may proceed for her part, it would be an unheard of mode of splitting up an action, and a novel species of abatement as to a part. Or, suppose the husband dies before suit — then it is clear that his representative and the wife cannot join. The former can bring trespass for the injury to his intestate's crop; what action can the wife bring for the injury to her inheritance? Certainly, it must be case "in the nature of waste." Upon what principle, then, other than that of necessity (which does not now exist) can the husband be allowed, in his lifetime, to join in one action that which, after his death, constitutes two distinct causes of action, belonging to two different persons?
(35) The counsel then assumed the position that in ejectment for the wife's land, she must be joined as one of the lessors; and the effect of it was, to prevent the right of entry from being tolled, under the saving in the statute in favor of femes covert. For this he citedCaldwell and wife v. Black,
But in our case the husband was seized during coverture; there was issue born alive, and the eviction took place afterwards; the question is, in this case, must the wife be joined? It is true she may be joined, and it is usual to join her; but the conclusion that the husband has no separate estate is not supported, unless she must be joined. The husband can, without joining the wife, make a lease for years, which is valid until his death. This is clear — Bac. Abrid., "Leases and Terms for Years" — consequently, he may bring ejectment without joining the wife. In Bac. Abrid., "Ejectment," it is considered as settled, that although the husband may join the wife, as her contracts relating to her estate are but voidable during the coverture, yet it is not necessary that the husband and wife should join in a lease to try the title to her estate. He alone might make a lease for that purpose, and several cases are cited, in which the husband has maintained ejectment on his own demise.
It was then assumed, that when the eviction is after seisin by the husband and birth of issue, the entry is not tolled by seven years' adverse possession, provided the wife is joined; and it was forcibly put that this tends to show that the entry was the right of the wife, because it would be inconsistent to allow the husband to save his own right of entry, by taking shelter under his wife's name. If the husband has an estate in his own right, there is no reason why his entry should not be tolled, and the wife or her heirs have seven years after his death to assert her right. The idea, therefore, that by joining (36) the wife the husband can recover possession at any time during the coverture, notwithstanding an adverse possession of seven years, is inconsistent with the fact of his having a separate estate in his own right, and it is necessary to examine into the correctness of the position assumed as the basis of the argument.
It is obvious that the position conflicts with the reasoning and authorities before cited to show that the husband had an estate in his own right. No authority was cited to support it, and the counsel relied solely on an opinion, arguendo, of Chief Justice Ruffin, in Caldwell v. Black, where it is said, that in case of an eviction during coverture, seven years adverse possession does not toll the entry, because of the coverture of the wife.
It is proper, therefore, to examine the grounds upon which the opinion is based. The cases of Took v. Glascock, 1 Saund., 250; Polyblank *50 v. Hawkins, Doug., 329, are relied on as precedents to show that the form of pleading is, "the husband and wife are seized in their demesne as of fee, in right of the wife." It will be seen, however, that in both of these cases the wife had a reversion, and not an estate in possession. Of course, the estate is truly described by the words, the husband and wife were seized of the reversion in their demesne as of fee. These cases have no bearing on the question, whether the husband has a separate estate, where there is an estate in possession.
The Statute 32, Hen. 8, was passed for the express purpose of enabling the husband and wife to make a lease by matter in pais, which should be binding on her after coverture; because she could not, like any other person having a reversion, confirm the lease by joining in its creation. This statute is therefore consistent with the fact of a separate estate in the husband, and cannot be made to bear on the question of ejectment, without going beyond its express object, and requiring the tenant in possession not merely to confess a lease, but to confess a lease with the nine requisites of the statute — i. e., that it was by indenture, etc., etc.
McRee v. Alexander,
The other authorities cited support the decision, but conflict with the position assumed, arguendo; Allen v. Gentry,
The two cases cited, therefore, are on all-fours with the decision inCaldwell v. Black, but oppose the position assumed, arguendo. Suppose the wife in possession of the things at the time of her marriage, and they are taken from the possession of the husband; certainly he must sue alone, and could not avoid the statute by joining his wife. So, where the eviction of land takes place after the husband has possession, it is an injury to him, and joining the wife cannot avail him, if his entry was tolled. Or, if it was not, and he died after recovery in ejectment, and before bringing an action for the mesne profits, the wife certainly would not be entitled to the profits, because they are in lieu of the crop which the husband would have raised during the coverture, but for the eviction; and his representative would be entitled to them as (38) damages, for the injury done to his intestate.
We have entered somewhat at large into the discussion of this question, because we are aware, that although the distinction between taking things personal before and during coverture, is familiar to the profession, yet they have failed to advert to the fact, that the same distinction exists in regard to an eviction from the wife's land, before and during coverture; and an impression prevails, that in ejectment the wife must be joined, as well when the eviction is during coverture as where it is before coverture; and consequently, that in either case, the right of entry is not tolled during the coverture, and the wife has only three years after discoverture to bring her action; whereas, in fact, although her entry is not tolled, when the eviction is before coverture (she marrying while under age), and she has three years after discoverture in which to sue; yet when the eviction is during coverture, the husband has an estate for his life in his own right; his entry is tolled by seven years adverse possession; and the wife, or her heirs, have seven years after his death to bring their action, because her right of entry did not accrue until his death. Like the case of a reversioner or remainderman, after an ordinary estate for life, who has no right, and is not required to look to it, until the determination of the particular estate. This impression was probably occasioned by Jones v.Clayton,
It was said in the argument, that the idea of two actions for an injury committed at one and the same time, and in fact by the same act — e.g., if apple trees are cut down, an action of trespass by the husband for the loss of the fruit, and of case by husband and wife, for the injury to the inheritance — is incongruous; because there is a supposed identity of person and the husband would receive the damages recovered in both actions. There is no incongruity, nor is it without precedent. A battery is committed on the wife; the husband and wife sue in trespass for the immediate injury to her person — the husband sues alone in case for the loss of society, etc.; yet he gets the damages recovered in both actions. That is the reverse of our case, where the immediate injury being to the possession of the husband, he sues alone in trespass, and the injury to the inheritance is sued for by the husband and wife, in case, "in the nature of waste."
That the statute of limitations does not bar, is a corollary of the conclusion, that case in the nature of waste is the proper action. The rule is, where the wife must be joined, the statute does not bar; for it is her cause of action, and survives to her. Where the husband must sue alone, or may, at his election, join the wife, the statute does bar; for it is his cause of action, and does not survive to the wife.
PER CURIAM. Judgment reversed, and venire de novo awarded.
Cited: Dozier v. Gregory,
(40)