Husband and Wife — Mortgage by Husband of Crops on Wife's Land — Curtesy.
1. The act of 1849 (section 1840 of The Code) only prohibited the husband from selling or leasing the real estate of his wife without her consent, and prevented the sale of the land under execution against the husband, but his rights as tenant by the curtesy initiate to the rents and profits were not impaired thereby.
2. Where the marriage and seizin of the wife in the lands took place before the adoption of the Constitution of 1868, the husband has the right to the crops on his wife's lands, and may sell, lease, or mortgage them.
MONTGOMERY, J.
The matter set up in the answer of the feme (139) defendant cannot avail her. At common law the husband, when. by birth of issue he became tenant by the curtesy initiate, was the owner of the crops grown on the wife's land, and even in case of his death before hers his personal representatives were entitled to them. Williams v. Lanier, 44 N.C. 30. The Act of 1849, Code, sec. 1840, only prohibited the husband from selling or leasing, for the term of his life or any less term of years, the real estate of his wife when the marriage had taken place since the third Monday of November, 1848, without her consent by deed and privy examination; nor would that act suffer his estate in the land to be sold under execution against him. His rights however to the profits and rents were not impaired or disturbed. In Houston v. Brown, 52 N.C. 163, this Court said, in referring to that Act: "The sole object was to provide a home for her (the wife) of which she could not be deprived by the husband or the creditors." The marriage and seizin of the wife in the lands took place before the adoption of the Constitution of 1868; and article X, sec. 6, of that instrument, and the laws made in pursuance thereof, apply only to cases where the marriage has been contracted or the property acquired since the adoption of the Constitution. Morris v. Morris, 94 N.C. 613; Thompson v. Wiggins, 109 N.C. 508.
There was error in the instruction which his Honor gave to the jury, and the plaintiff is entitled to a
New trial.
(140)