Opinion
(December Term, 1859.)
It was not the intention of the act of 1848 (Rev. Code, ch. 56, sec. 1) to deprive the husband of his estate by the curtesy.
EJECTMENT, tried before Heath, J., at last Fall Term of UNION.
Wilson for plaintiff.
Ashe and Jones for defendant.
The case was submitted upon the following facts agreed upon by the counsel: The defendant, in 1854, was married to one Eleanor L. Houston, who at the time of the marriage was seized in fee of the land in controversy. On 14 September, 1855, she gave birth to a child, born alive, and she died within a few hours after that event. The child survived its mother about ten months, and then died also. The defendant took possession of the premises immediately after the marriage, and has continued to hold them ever since. The lessors of the (162) plaintiff are the children of the said Eleanor by a former marriage, and her heirs at law. The only question in the case was whether the act of 1848 (Rev. Code ch. 56, sec. 1) takes away the husband's right to an estate by the curtesy.
His Honor being of opinion against the plaintiff upon that question, gave judgment for the defendant, and the plaintiff appealed.
The case presents this question: Does Rev. Code, ch. 56, sec. 1, deprive the husband of his right, according to the common law, to an estate for life in the land of the wife as tenant by the curtesy?
In the absence of an express provision to that effect, we should be slow in adopting the conclusion that it was the intention of the lawmakers to enact so radical a change in the law, because, if such was the intention, it is reasonable to presume it would have been declared in direct terms, and not be left as a matter of inference. We are not able, however, to see anything in the section referred to calculated to raise even a doubt as to its proper construction. The purpose was to adopt, to a partial extent, the principle of a "homestead law," and to provide a home for the wife during her life, leaving the rights of the husband unimpaired and unrestricted after her death. To this end the husband is not allowed to sell the land, or even make a lease for years, in her life-time without her consent, authenticated by deed and privy examination. Nor can his estate in the land be sold under execution. To this extent the power of the husband is restricted, but no further; and after her death there is no intimation of an intention to interfere with his rights according to common law. This is manifested by the provisions as to the wife's privy examination and the general scope of the enactment. The (163) sole object is to provide a home for her, of which she could not be deprived either by the husband or by his creditors. There is
PER CURIAM. No error.
Cited: Long v. Graeber, 64 N.C. 432; Wilson v. Arentz, 70 N.C. 673; Jones v. Cohen, 82 N.C. 81; McGlennery v. Miller, 90 N.C. 220; State v. Mills, 91 N.C. 593; Morris v. Morris, 94 N.C. 617; McCaskill v. McCormac, 99 N.C. 551; Cobb v. Rasberry, 116 N.C. 139.
Dist: Thompson v. Wiggins, 109 N.C. 509; Walker v. Long, Ib., 511; Taylor v. Taylor, 112 N.C. 136.