
    MARY A. WALKER v. JOHN W. LONG.
    
      Constitution — Tenant by Curtesy — Husband and Wife — Deed— Parties.
    
    1. '.The common law estate of the husband as tenant by the curtesy initiate in the lands of his wife was abolished by Section 6, Art. 10, of the Constitution, and now, by virtue of that provision and the statutes passed in pursuance thereof, while the husband has an interest, the right to enter upon and occupy the land with the wife, he has no estate therein until her death.
    3. The husband cannot maintain an action in his name alone to recover lands of which he is tenant by the curtesy initiate, but the wife can maintain such action, either by joining her husband or suing alone.
    3. A conveyance of land from husband to wife will pass the legal estate of the vendor and enable the vendee to sustain an action to declare title and recover possession.
    
      Civil ACTION, tried at August Term, 1891, of Iredell Superior Court, Armfield, J., presiding.
    The facts are stated in the opinion.
    
      Messrs. Robbins & Long (by brief), for plaintiff.
    
      Mr. D. M. Furches (by brief), for defendant.
   MerrihoN, C. J.:

The plaintiff sues alone. It appears that she is a married woman, having living children of her marriage with her present husband capable of inheriting her real property. She alleges that she is the owner in fee and entitled to have possession of the land specified in the complaint. On the trial she put in evidence of her title to the land, a deed purporting to convey the same to her in fee, executed to her on the 7th day of June, 1883, pending the marriage by her present husband.

The defendant appellee contends, first, that she cannot maintain this action, because her husband is tenant of the land by the curtesy initiate, and he alone can sue to recover possession of the same, and certainly she cannot, without suing as party with her husband.

It may be conceded that the tenant, by the curtesy initiate, could have sued alone for and recovered possession of the lands and the rents and' profits, in this State, before the adoption of the present Constitution. Houston v. Brown, 7 Jones, 161; Wilson v. Arentz, 70 N. C., 670; State v. Mills, 91 N. C., 593; Morris v. Morris, 94 N. C., 613.

But that Constitution (Art. 10, § 6,) has wrought very material and far reaching changes as to the rights respectively of husband and wife in respect to her property, both real and personal, and enlarged her personality and her power in respect to and control over her property. It provides that, “ the real and personal property of any female in this State, acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised and bequeathed, and with the written assent of her husband, conveyed by her as if she were unmarried.” This provision is very broad, comprehensive and thorough in its terms, meaning and purpose, and plainly gives and secures to the wife the complete ownership and control of her property, as if she were unmarried, except in the single respect of conveying it. She must convey the same with the assent of the husband. It clearly excludes the ownership of the husband as such, and sweeps away the common law right, or estate he might at one time have had as tenant by the curtesy initiate. The strong, exclusive language of the clause recited above is, that the property “shall be and remain the sole and separate estate and property of such female, the wife,” and to make the provision more thoroughly exclusive, it further provides that such property “shall not be liable for any debts, obligations or engagements of her husband.” Pertinent legislation, since the Constitution became operative, is in harmony with the section above recited. The statute (The Code, §§ 1837, 1838) provides that “ the savings from the income of the separate estate of the wife are her separate propertyand the husband shall be, not tenant by the curtesy initiate, but tenant by the curtesy after the death of the wife, in case she die intestate. The husband, as husband, has no estate in his wife’s land during her life-time. But he has an interest as tenant by the curtesy initiate. Thompson v. Wiggins, decided at this term. He has, by reason of his relation to her as husband, and his right to have the benefit of her society, the right to go upon her land and occupy the same freely with her as her husband. And hence, by going to her house and upon her premises for all lawful purposes, he is not a trespasser, he so goes and remains of right, but he has no estate in the property. This Court has so, in substance and effect, repeatedly decided. Manning v. Manning, 79 N. C., 293; Manning v. Manning, Ibid, 300; Cecil v. Smith, 81 N. C., 285; Kirkman v. Bank, 77 N. C., 394.

The property in controversy, for the present purpose, must be treated as the plaintiffs’. The statute (The Code, §178, par. 1) provides that the wife may sue alone when the action concerns her separate property.” As we have seen, this action does concern the separate property of the plaintiff wife. Hence, the appellant’s first objection is unfounded.

The plaintiff claims title by virtue of a deed of conveyance from her husband, executed on the 7th of June, 1883, pending her marriage with him. The appellant further contends that such deed was ineffectual to pass the legal estate in the land to the plaintiff wife, and, therefore, she cannot recover at law — that she can only recover her equitable estate in an action equitable in its nature, and she must allege specifically the nature of her title, which she has not done.

We need not stop to enquire whether or not the plaintiff could recover upon her equitable title, if she has one, because we are of opinion, treating the deed in question as free from fraudulent taint, and as sufficient in other respects, it had the effect to convey the legal title to the land to the plaintiff. As we have seen, the constitutional provision above recited has made the wife a person in an important sense, distinct from her husband as to her own property. She owns it free from his interference with or control over it. She has power to acquire it. She can devise and bequeath it — she can sell and convey it as if she'were a feme sole, except that she must convey it with the written assent of her husband. As to her separate property, however acquired, she and her husband are, as to property rights and estates, not to be recognized and treated in legal contemplation as one person — as to that, they are made distinct and several persons — she is as an unmarried woman — it is so expressly provided. Hence, when the husband conveys property, of whatever nature, to his wife, he does not in any legal sense convey to himself; and when the wife so conveys to her husband, she does not in such sense convey to herself. The conveyance is made in such case by one distinct person to another. The wife is to have the full legal as well as equitable benefit from such conveyance as if she were unmarried. There is, therefore, no reason why the husband may not convey to the wife.

Moreover, the statute (The Code, §§ 1835, 1836) expressly provides that husband and wife may contract with each other. This cannot mean that they are one person contracting with himself! They are allowed to contract with each other as distinct persons capable of contracting with each other, and having separate and distinct benefit from such contract. Hence, in proper cases, they may maintain actions against each other. Hence, too, the wife may sue alone as to her own property. This Court has, in many cases, recognized, upheld and enforced such contracts as effectual as well at law as in equity. George v. High, 85 N. C., 99; Brown v. Mitchell, 102 N. C., 347; Battle v. Mayo, Ibid., 413; Woodruff v. Bowles, 104 N. C., 197; Stephenson v. Felton. 106 N. C., 121; Osborne v. Wilkes, 108 N. C., 651.

There is error. The judgment of nonsuit must be set aside, and the case disposed of according to law.

Error.  