
    George W. Brown and Wife vs. James Lindsay, Administrator of John Atchison, et. al.
    
    Heard before Chancellor D. Johnson, Charleston, May Term,' 1836.
    The material facts of this case are as follows :
    John Atchison and his wife, being, each, seized in fee, in equal undivided shares of the livery stable and lots, in Church and Chal-mers streets, Charleston ; Atchison, in May, 1830, leased the whole of the premises to Edward Francis, lor five years, at two thousand' dollars a year.
    In April, 1833, Atchison died, intestate, leaving his wife, and three infant children by a former marriage. James Lindsay administered on his estate. Atchison’s widow married George W. Brown.
    • The.lease to Francis expired in May, 1835; and Francis paid the rent due, to the administrator of At'chison, his lessor ; no rent being ever demanded of him, Francis, by the widow or her second husband; nor did either of them ever enter, or interfere, with the lease, after the death of Atchison ; unless that be inferred from their giving Atchison’s administrator a general power of attorney to receive monies due them.
    Brown and wife having filed their bill against the administrator and children of Atchison, for a settlement of his estate, it was referred to the commissioner to take the accounts, and ascertain the net distributive shares of the widow and children in the estate.
    The commissioner reported, that Mrs. Brown was entitled to two thirds of the rent, which accrued after Atchison’s death — to-wit, to half of the whole rent on account of her ownership of one' moiety of the premises, and third of the other half, as widow and distributee of Atchison. To this report the children of Atchi-son excepted.
    “1. Because John Atchison, the husband of Mrs. Sarah Atchi»-son, (now Mrs. Brown,) was authorized, by law, to lease his own moiety, and also his wife’s moiety of the premises, to Edward Francis ; and that the entire accruing rent, for the whole term, was distributable as assets of his estate.
    ‘‘ 2.- Because the lease to Francis, was the property of John Atchi. son’s estate, which might, perhaps have been defeated by entry by his widow, on his death ; but that the right of Mrs. Atchison, was; Do more than a right of entry. and not a right to the rent, reserved-by the lease. And the wife not having entered, or done any act to defeat the lease, she made her election to take one third of the rent under it, as a distributee of her husband’s estate.” '
    DEGREE. — John Atchison, the defendant’s intestate, was, in his-life time, seized in his own right of an undivided moiety, and, in right of his wife, now the complainant, Mrs. Brown, of the other undivided moiety of a certain lot of land, in the city of Charleston,, whereon livery stables have been erected. Ia 1830, the intestate leased the entire lot and stables to o.ie Francis, for the term of five years, at an animal rent of two thousand dollars, Atchison died in 1833, iutestate, his wile surviving, and leaving children by a former marriage. Francis, notwithstanding, retained possession of the premises for the remaining two years of the unexpired term, and paid the rent to the defendant, the administrator of Atchison, asnnpnting to four thousand dollars.
    The qtestion is, whether Mrs. Brown is entitled to a moiety of the rents accruing, after the death of the intestate, or whether they are assets in the hands of his administrator.
    There is no question that the wife’s inheritance in land abides in her, notwithstioding her coverture, and survives to heron the death of the husband. The husband may, however, during his life, use, aben, or change, the lands of the wife'; but, on his death, these and all other incumbí anees, fall off, and drop, with his estate, and interest therein. (Bac. Ab. title Leases and Terms for years; C. 1.)
    It seems, however, that it has been a controverted question, whether a louse, made by the husband, of the wife’s lands, for a longer term than his own life, the wife surviving, became absolu ely void on his death, or was only voidable at the election of the wife.
    Bacon, in the chapter before referred to, lays it down, that it is good for the whole term, u ¡less the wife, by some act after the bus-band’s death, shews her dissent thereto ; for if she accepts rent, which became due after his death, the lease is thereby rendered absolute and unavoidable. The reason given, is, that, by reason of the marriage, the wile loses altoge:her the power of contracting, or disposing, of her own possessions ; and, having subjected herself to the will and power of the husband, the power of contracting about, and disposing of, her possessions, devolves upon him ; he-cause no oue else has the right, or power, to meddle therewith ; and without such power, they would be obliged to keep them in their own hands and occupation, — which might, finally, prejudice both. The abuse of this power, is guarded against, by permitting the wife, after his death, to affirm or disaffirm, his lease, as she may find most subservient to her own interests.
    So in Cruise’s Digest, vol. 4, p. 64, it is said that such leases, by the husband, are not void, but voidable, at the election of the wife. And Chauceilor ECent, (2. Kent’s Com. 133,) on the authority of Mr. Preston, (Essay on Ábs. of Titles, vol. 1, p. 334, 5, 6,) remarks, that from the authorities, when closely examined, it seems, that, according to ihe common law', the husband has the power of transfering the whole estate of the wife ; and the estate will be in the alienee of the husband, subject to the entry of the wife, or her heirs, after the death of the husband, which entry is necessary to revest the estate- But Sergeant Williams, in a note to Waller vs. Hill, (2 Saund. 180, note 91,) whilst ho questions, whether, as a general rale, this doctrine is tenable, takes a distinction, which is very plausible, if not entirely sound, and is, certainly, more consonant to the analogies of the law, and has, by that means, attempted te reconcile the cases, Estates for lile'being freehold estates, could only commence in livery of seisin, and can only be avoided by entry. But not so in leases for term of years, when livery of seisin was unnecessary. And, therefore, he concludes that leases for life are only voidable, and leases for term of years absolutely void.
    Roper, in his treatise on property, arising from the relation of husband and wife, (vol. 1, page 93 ) seems to take for granted, that, notwithstanding some cases tu the contrary, a lease by the husband alone, of the lauds of the wife, for a term of years, is ab« solutely void, as to the wife, surviving.
    But this question is wholly irrelevant to the matter now in issue.
    The argument, of the defendants, is, that the lease was voidable only; and that the wife could avoid it only by entry, or, according to the laws of this State, by suit at law against the lessee. Conceding this to be correct, it does not follow that she is not entitled to the rents. All the authorities agree ihat where the lease is voidable only, any act of the wife, confirmatory of the lease, such as bringing an action of waste, or receiving the rents, after the death, of the husband, is evilence of the election of the wife to confirm the lease. It follows, therefore, thit she may receive the rents. A contrary rule would direcily iufri-.ge the fundamental principle, that a husband cannot alien the inheritance of the wile, to her prejudice, and against her consent, so as to bind her after his death. If lua representative, and not the wife, is entitled to the mesne profits, until she sue, (no other entry is kno wn here,) she would be deprived of the rents, ad interim.
    
    I concur, therefore, in the view taken by the commissioner j and it is ordered and decreed, that his report be c mfirtned, and made the judgment of the court.
    DAVID JOHNSON.
    The infant children of Atchison appealed from this de" sion, on the grounds stated in their exceptions taken to the común., s,oner’s report.
   Chancellor J. Johnston

delivered the opinion of the court.

The only point made by the appeal, relates to the rent winch accrued on the widow’s half of the lot, after the death of the husband.

The more convenient method will be to consider this moiety, as if it were a distinct parcel of land, owned entirely by the wife.

The case, then, is this : a husband grants a term out of his wife’s fee, and dies, pending the lease, having received the rent up to his death. The tenant is permitted to hold to the end of the term, and pays the residue of the rent to the h tsband’s administrate 5 who, at the same time, holds a general power from the widow to receive monies due to her.

The question, is, whether the administrator can hold the residue ox rent, thus received by him, as assets of the husband, or whether it belongs to the wife.

The dominion which a husband acquires over his wife’s property, yesults .entirely from the contract between them. If they have made an express contract, lawful in its terms, that will govern. If, as was the case here, there was no express contract between them, the law raises an implied one, according to the character of the wife’s property. 7 Ves. 183. 9 Ves. 177. The implication as to her chattels real, is, that the husband may forfeit or dispose of them during her life. If he does not, they go absolutely to whichever of the two happens to survive the other. I mention this to relieve the case, at once, from the authority of Preston. He has been quoted to shew, that in the case at bar, the administrator of Atchison is entitled to the rents. But his authority is a case of the wife’s leasehold estate, and decides nothing here, whore the estate of the wife is a fee.

The implication of law, as regards lands owned by the wife in fee, is, that she has granted the husband dominion over them during the continuance of the marriage. When the marriage ceases, his control ceases with it; the wife is re-invested with all her original rights, and is not bound by any contract made by him beyond the authority, she, by marriage, conferred on him.

If the husband die, pending a lease granted by him opt of the wife’s fee, the rights incident to her fee, immediately vest in her; and she may select what mode she pleases for asserting them.

She may proceed against the lessee. He is but the assignee of the husband. And the husband having acted under a limited power, the wife may avoid his act, so far as it exceeded his authority.

In proceeding against the lessee, she may defeat the lease, altogether, for the unexpired part of the term ; or she may claim the benefit of it, In the latter case, while she avoids it as to the husband, she affirms it as to the tenant; and it. becomes, as it were, a new lease executed between the tenant and herself.

If she treats the tenant as a trespasser, she defeats the lease altogether ; and so far trom entitling herself to the rent, reserved by it, as was argued, destroys the rent by denying the tenure. The poeupant, considered as a trespasser, and not as a tenant, is liable, if he detains possession, not for rent, but for damages..

If she receives rent from him, or sues him for rent as a tenant, she, so far as he is concerned, affirms the lease ; but affirms it as-her own,

It has beau argued, that the wife cannot claim the rent, as against the husband’s executor, unless she deprives the lessee of the term. The argument seems to be, that so long as the tenant is permitted to enjoy the lease, it stands as the contract of the husband, who made it, and his executor is entitled to the benefit of it. But the cases quoted by the appellants, themselves, shew that this position .cannot be maintained. They say that the wife’s receipt of rent, so far from defeating the lease, as to the tenant, confirms him in his term : and yet they say that the wife is entitled to the rent she has received.

The affirmation of the contract, as to the tenant, is no affirmation of it, as to the husband, but merely substitutes the wife in his place, as a party to it. If instead of substituting her, it is a confirmation as to the husband, and perpetuates his contract for the benefit of his executor, then the wife is accountable to him for the rents she has received. The consequence would seem to be that she is to be held bound by the contract to confirm, and at the same time deprived of the consideration of that contract. If the executor should not see fit to look to the wife for what she has received, or she should waste it, he might still insist, that inasmuch as the wife’s confirmation perpetuated the husband’s contract for the husband’s benefit, the very payment which served to confirm the lease was no .discharge to the tenant; and that he still remained liable to the executor :■ a consequence equally absurd and unjust.

In this case, Mr. Lindsay, when he received the rent, was not only Atchison’s administrator, but also the attorney for the widow. The act of receiving may be referred to either character. If we refer it to his character of attorney, it is as if the widow had, herself, demanded and received the rents from the tenant. In that case she would, as we have seen, be entitled to them, as between herself and the administrator.

Wo have stated what rights the wife roay exert as against the tenant. If she ousts him she disaffirms the contract, both as against lessor and tenant. In that case the tenant may look to the lessor’s estate for damages on the covenant. If-she claims rent from the tenant, she confirms as to him, but disaffirms as to the husband. In that case the contract between the husband and tenant is dissolved, but without laying a foundation for damages on either hand.

But the widow, here, did not oust the tenant; and it is contended . that Mr. Lindsay received the rent, as Atchison’s administrator, and not as her agent. Let us see what, on principle, must be the consequence,.

Desaussuke and CeAfts, for motion.

Petigku & Lksesne, contra.

Filed 21st March, 1837.

The wife, in the case we have just supposed, has permitted the lease to stand as between the lessor and tenant; and the tenant has, I presume rightfully, paid the rent to his landlord’s representative. I suppose the wife has lost her right as against the tenant. He was not to take notice of a claim never interposed, and being in under the husband, and never disturbed, he could neither aver against his landlord’s title, nor resist payment.

Bul 1 apprehend the wife has a good right to disaffirm the contract against either party to it. She-may do this as against the husband, although she forbore to do it against his tenant.

It must be borne in mind, that the husband acted under a power coupled with an interest, which he derived from her. Fov any act beyond his interest, be must be regarded as her agent. His representative is not entitled to hold against his principal, what he has received, by exceeding his authority, and beyond his interest.

The motion is refused.

J. JOHNSTON.

We concur,

DAVID JOHNSON,

WM. HARPER.  