
    George W. Brown and Wife v. James Lindsay, Administrator of John Atchison, and Others.
    The husband having leased his wife’s inheritance and died during the term, the administrator, who also acted under a power of attorney from the wife, received the rent from the tenant: Held, that the wife was entitled to the rent accruing after the husband’s death. [*545]
    As regards lands owned by the wife in fee, the dominion of the husband continues no ionger than marriage; after that, she may defeat an unexpired lease of the husband altogether by ousting the tenant, or claim the benefit of it. [*6 Hi]
    Heard before Chancellor 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 Chalmers streets, Charleston ; Atchison, in May, 1830, leased the whole of the premises to Edward Francis, for 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 Geo. W. Brown.
    The lease to Francis expired in May, 1835 ; and Francis paid the rent clue, to the administrator of Atchison, his lessor; no rent being ever *5431 demanded of him (Francis) by the widow or her second *hus- -* band ; 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 moneys 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 Atchison excepted:—
    “1. Because John Atchison, the husband of Mrs. Sarah Atchison, (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 terra, was distributable as assets of his estate.
    “ 2. Because the lease to Francis was the property of John Atchison’s estate, which might perhaps have been defeated by entry by his widow, on his death ; but that the right of Mrs. Atchison, was no 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.”
    Johnson, Chancellor. The question 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, notwithstanding her coverture, and survives to her on the death of the husband. The husband may, however, during his life, use, alien or charge the lands of the wife; but, on his death, these and all other incumbrances, 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 lease, made by the husband, of the wife’s lands, for a longer *term than his own life, the wife surviving, became absolutely void on L 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, unless the wife, by some act after the husband’s death, shows 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 wife loses altogether the power of contracting or disposing of her own possessions; and, having subjected herself to the will and power of tjie husband, the power of contracting about, and disposing of, her possession, devolves upon him; because no one 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 Chancellor Kent, (2 Kent’s Com. 112,) on the authority of Mr. Preston, (Essay on Abs. of Titles, vol. 1, p. 334, 435-6,) remarks, that from the authorities, when closely examined, it seems, that, according to the common law, the husband has the power of transferring 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 v. Hill, (2 Saund. 180, note 81,) whilst he questions whether, as a general rule, 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 to reconcile the cases. Estates for life 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, where livery of seisin was unnecessary. And, therefore, he concludes that leases for life are only voidable, and leases for term of years absolutely void.
    I concur, therefore, in the view taken by the Commissioner; and it is ordered and decreed that his report be confirmed, and made the judgment of the Court.
    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 to the contrary, a lease by the husband alone, of the lands of the wife, for a term of years, is absolutely void as to the wife surviving. *54.51 *But this question is wholly irrelevant to the matter now in issue. J 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 that 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 evidence of the election of the wife to confirm the lease. It follows, therefore, that she may receive the rents. A contrary rule would directly infringe the fundamental principle, that a husband cannot alien the inheritance of the wife, to her prejudice and against her consent, so as to bind her after his death. If his representative, and not the wife, is entitled to the mesne profits, until she sue, (no other entry is known here,) she would be deprived of the rents, ad interim.
    
    The infant children of Atchison appealed from this decision, on the grounds stated in their exceptions taken to the Commissioner’s report.
    
      H. A. De Saussure and Crafts, for appellants.
    
      Petigru and Lesesne, contra.
   Chancellor Johnston

delivered the opinion of the Court.

The only point made by the appeal, relates to the rent which 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: 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 husband’s administrator; who, at the same time, holds a general power from the widow to receive moneys due to her.

[*546 The question is, whether the administrator can hold the residue of *rent, thus received by him, as assets of the husband, or whether it belongs to his wife ?

The dominion which a husband acquires over his wife’s property, results 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 show, 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, where 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 out 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 from entitling herself to the rent reserved by it, as was argued, destroys the rent by denying the tenure. The occupant, 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 been argued, that the wife cannot claim the rent, as against the husband’s executor, unless she deprives the lessee of L 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 . themseves, show 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.

We have stated what rights the wife may 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 J not as her agent. Let us see what, on principle, must be the consequence.

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.

But I 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. For any act beyond his interest, he 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.

Chancellors Johnson and Harper, concurred.  