Prior to the

This act of 1849-50 secured to the wife her estate against any act or liability of must be joined, for if the husband may sue alone, it is on the ground that he has a separate estate in his own right. The cases in Comyn's Digest, under title, 'Baron & Feme,' when husband must sue alone, when he may join the wife, when he must join the wife, which are also cited in Bacon, Abr. 'Baron & Feme,' page 500, evidently conflict, and it is impossible to deduce any principle from them. In Bidgood v. Way, 2 W. Bl. 1236, they are called a 'farrago of cases.' This is, no doubt, because of the fact that at the time most of them were decided, the principle that a reversioner or remainderman might bring 'case in the nature of waste' against a stranger for an injury to the inheritance was not established; consequently, where an injury was done directly to the husband by destroying his crop, and also to the inheritance by cutting timber trees, inasmuch as no action of waste could be brought, he was ex necessitate allowed, by joining the wife, to recover in trespass quare clausum fregit, not only for the immediate injury to him, but also for the injury to the inheritance, in the same way as any particular tenant might recover, not only for the immediate injury, but also for the injury to the inheritance, by way of reimbursement for his liability over. So that, if the husband sued alone, he recovered damages for the immediate injury. If he joined his wife, besides these damages, he also recovered damages for the injury to the inheritance. But after the principle was established that the reversioner might sue a wrongdoer in case 'in the nature of waste,' the necessity no longer existed, and the practice of allowing the wife to be joined (which had originated in that necessity) no longer obtained, and the cases in which it had been allowed were considered of doubtful authority. It was said there was no more reason for allowing the husband, by joining his wife, to recover in trespass for an injury to his crops, and also for an injury to her inheritance, than there was for allowing a tenant for life to join the reversioner, and so recover for an injury to both in one action; because the husband might sue alone in trespass for the injury to his crop, and join his wife in case for the injury to her inheritance. Suppose a stranger injures the

The husband, as governor of the family, and by virtue of the marriage, is entitled to the control of his wife's estate in land, and can sue for and collect the rents when crop and also the inheritance; the husband brings trespass in the name of himself and wife for both injuries; the husband dies; the action as to the crop must abate, for it belongs to his representatives; or the wife dies, then the action as to the injury to the inheritance must abate, for that belongs to the wife's representatives. And if in the one case the husband is allowed to proceed for his part of the injury, and in the other the wife may proceed for her part, it would be an unheard of mode of splitting up an action, and a novel species of abatement as to a part. Or, suppose the husband dies before suit, then it is clear that his representative and the wife cannot join. The former can bring trespass for the injury to his intestate's crop; what action can the wife bring for the injury to her inheritance? Certainly, it must be case 'in the nature of waste.' Upon what principle, then, other than that of necessity (which does not now exist), can the husband be allowed, in his lifetime, to join in one action that which, after his death, constitutes two distinct causes of action, belonging to two different persons? The counsel then assumed the position that in ejectment for the wife's land, she must be joined as one of the lessors; and the effect of it was to prevent the right of entry from being tolled under the saving in the statute in favor of femes covert. For this he cited Caldwell v. Black, 27 N. C. (5 Ired. L.) 463, and then very ingeniously deduced the conclusion that the husband had no estate in his own right. The case cited is an authority for the position that when the eviction is before the marriage, the wife must be joined, and her right of entry is saved. The reason is, her estate being devested at the time of the marriage, she had but a mere right, and the husband, not being seised during coverture, could take no estate in his own right. Gentry v. Wagstaff, 14 N. C. (3 Dev. L.) 270. Consequently she must be one of the lessors. The action is to assert her right, and the husband is joined merely be cause of her incapacity. In such a case the conclusion is a legitimate one, that the husband has no separate estate. But in our case the husband was seised during cov erture; there was issue born alive, and the eviction took place afterwards; and the

In the present case no effort is made to protect the wife as against her act by showing that she was imposed upon, and question is, in this case, Must the wife be joined? It is true she may be joined, and it is usual to join her; but the conclusion that the husband has no separate estate is not supported, unless she must be joined. The husband can, without joining the wife, make a lease for years, which is valid until his death. This is clear. Bacon, Abr. 'Leases and Terms for Years.' Consequently, he may bring ejectment without joining the wife. In Bacon, Abr. 'Ejectment,' it is considered as settled that, although the husband may join the wife, as her contracts relating to her estate are but voidable during the coverture, yet it is not necessary that the husband and wife should join in a lease to try the title to her estate. He alone might make a lease for that purpose; and several cases are cited in which the husband has maintained ejectment on his own demise."

A tenant by the curtesy initiate can under the common law maintain an action to recover possession of the estate without the wife's joining as a plaintiff. Shortall v. Hinckley, 31 Ill. 219 (statement arguendo); Jacobs v. Rice, 33 Ill. 369; Porter v. Bowers, 55 Md. 213; Rust v. Goff, 94 Mo. 511, 7 S. W. 418: Meriwether v. Howe, 48 Mo. App. 148; Williams v. Lanier, 44 N. C. (Busbee, L.) 30; Doe ex dem. Childers v. Bumgarner, 53 N. C. (S Jones, L.) 297; Wilson v. Arentz, 70 N. C. 670; Thompson v. Green, 4 Ohio St. 223; Crow v. Kightlinger, 25 Pa. 343.

The decision in BRYANT V. FREEMAN appears to be based upon a doctrine peculiar to the courts of Tennessee. Those courts appear to have confused or intermingled the attributes of an estate jure uxoris with those of the estate by the curtesy initiate, and out of the combination evolved the doctrine that the husband and wife should be jointly seised of the whole estate; hence, they must sue jointly for possession if disseised, neither being entitled to sue alone. If the husband alone conveys his estate, the wife cannot maintain an action during his life, for the reason, according to these courts, that the joint seisin has been severed. This point is best illustrated by the Tennessee decisions in respects to adverse possession to bar the wife and her heirs. It is held that if the defendant is in possession under

jointly complainant with her husband. The complainant sues in his own right independent of the wife. Under these circumstances he cannot recover. We do not mean to hold that the husband is powerless to protect his wife's property or his own rights in the property, nor to recover rents, under any and all circumstances where the wife has attempted to convey her land, but this court does hold that no recovery can be had in the manner here attempted.

The decree of the Chancellor must be affirmed.

a valid title by the husband alone, limitation does not run against the wife and her heirs until the estate conveyed by the husband is terminated, there being no right of joint action, and therefore no right of separate action, for possession until that time. McCorry v. King, 3 Humph. 267, 39 Am. Dec. 165; Stokely v. Slayden, 8 Baxt. 307. But if, for any reason, a joint action was not barred, limitation runs against the wife and her heirs (saving a statutory right for a short period after the husband's death) from the time of the disseisin. Thus, in Stokely v. Slayden, supra, the defendant was in possession under a title bond from the husband alone, and it was held that a joint action could have been maintained, hence limitation ran against the wife and her heirs. Other cases in which it was held that limitation runs against the wife and her heirs because there was a right of joint action are Guion v. Anderson, 8 Humph. 298; Weisinger v. Murphy, 2 Head, 674. (The question of adverse possession as a bar of curtesy is treated in the note to Calvert v. Murphy, 52 L.R.A. (N.S.) 535, and as a distinct question is not considered in this note.) Other courts outside of Tennessee base their holdings in similar cases upon the disability of coverture, and upon the fact that the wife, like a remainderman, is not entitled to possession until the termination of the prior estate, neither of which reasons apply when the wife has transferred and the husband brings suit for possession. But the court in BRYANT V. FREEMAN applies its joint seisin theory against the husband's right to sue alone for possession. The court vaguely intimates that if he had avowed that he was suing to recover the joint seisin in order to share it with his wife as a protection to her, the decision might be the opposite. This is consistent with the theory upon which the Tennessee courts refuse to permit the wife to maintain an action for possession after the husband has conveyed his interest, but it is not consistent with the reason for the decisions of other courts, and it is inconsistent with the common-law theory of estates by the curtesy initiate. No doubt, in most jurisdictions the same conclusion as to the husband's right to sue would be reached, but it would be for the reason

It logically follows, and it has been held, that a statute that has the effect of abolishing the estate of curtesy initiate, leaving only the estate of curtesy consummate, abolishes the husband's rights to sue in his own name for possession of the wife's real estate or for injuries thereto. (See V. b, infra.) Beach v. Miller, 51 Ill. 206, 2 Am. Rep. 290; Melvin v. Locks & Canals, 16 Pick. 161. And it will be observed that most of the statutes limiting the husband's right or enlarging the wife's powers expressly provide against sale of the property for the husband's debts. (See infra, V. c.) And as before noted many states have expressly abolished all estates by the curtesy.

V. Effect of "married women's acts."

a. In general.

Statutes commonly called "married women's acts" have been enacted in most, if not all, of the states. These statutes, of course, differ, but they all attempt to enlarge the rights of married women in respect to their real estate. Practically all of them prohibit the sale by the husband of his estate by the curtesy initiate without the consent of his wife, and protect the wife's property from levy and sale to pay the debts of the husband. Decisions are not uniform as to the effect of those statutes upon the husband's estate by the curtesy initiate. Probably a majority of the courts hold that all the attributes of an estate by the curtesy initiate have been destroyed by the statutes, so the estate itself no longer exists, but that the estate by the curtesy consummate is not destroyed, since the statutes do not destroy the attributes of the latter estate, and do not expressly destroy or abolish the estate. (This question, whether or not the estate by the curtesy consummate has been destroyed, is not covered by this note, except as it is involved in the question of abolishing curtesy initiate by the various married women's acts.) One or two states have held that these statutes or constitutional provisions have the effect of abolishing all estates by the curtesy. (See V. d, infra.) In quite a large number of jurisdictions it is held that the estate by the curtesy initiate still exists, restricted and limited according to the terms of the stat

utes.

The statutes here discussed have practically all been held to be prospective, and not retrospective. So, if a particular estate by the curtesy initiate had vested at the time of an enactment, it is held that that

though future estates by the curtesy initiate are abolished. The statutes have been given this interpretation on the theory that the legislature has no power, and therefore never intended, to devest vested estates. This feature of the statutes has been considered in Mitchell v. Violett, 104 Ky. 77, 47 S. W. 195; Jackson v. Jackson, 144 III. 274, 36 Am. St. Rep. 427, 33 N. E. 51; Beale v. Knowles, 45 Me. 479; Clay v. Mayr, 144 Mo. 376, 46 S. W. 157; Myers v. Hansbrough, 202 Mo. 495, 100 S. W. 1137; Sleight v. Read, 18 Barb. 159; Richardson v. Richardson, 150 N. C. 549, 134 Am. St. Rep. 948, 64 S. E. 510; Jenney v. Gray, 5 Ohio St. 45; Denny v. McCabe, 35 Ohio St. 576; Hershizer v. Florence, 39 Ohio St. 516; Peck v. Ward, 18 Pa. 509; Lefever v. Witmer, 10 Pa. 505; Burson's Appeal, 22 Pa. 164; Wyatt v. Smith, 25 W. Va. 813.

b. To abolish the estate.

It has been held that estates by the curtesy initiate have been abolished, leaving only the contingent right of the husband to become tenant by the curtesy consummate in case he survives his wife, by statutes which provide―

-"that the real and personal property of any married woman which has been heretofore acquired, is now held, or which she may hereafter acquire in any manner whatsoever, from any person other than her husband, shall be her sole and separate property, and the rents, issues, and profits thereof shall not be subject to the disposal of her husband, nor liable for his debts" (another section gives to the wife the right to dispose of her property, both real and personal, by will; "but such disposal shall not affect the rights of the husband as tenant by the curtesy; and if she die intestate, her property, both real and personal, shall descend to her heirs as now provided by law"), Evans v. Lobdale, 6 Houst. (Del.) 215, 22 Am. St. Rep. 358;

-that "in the District the right of any married woman to any property, personal or real, belonging to her at the time of marriage or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts," Hitz v. National Metropolitan Bank, 111 U. S. 722-723, 28 L. ed. 577-580, 4 Sup. Ct. Rep. 613; Mattoon v. McGrew, 112 U. S. 713, 28 L. ed. 824, 5 Sup. Ct. Rep. 369;

-"that all the property, both real and personal, belonging to any married woman as her sole and separate property, or which any woman hereafter married owns at the time of her marriage, or which any married woman, during coverture, acquires in good faith from any person other than her husband, by descent, devise, or otherwise, together with all the rents, issues, increase, and profits thereof, shall, notwithstanding her marriage, be and remain, during cover

ture, her sole and separate property, under her sole control, and be held, owned, possessed, and enjoyed by her the same as though she was sole and unmarried, and shall not be subject to the disposal, control, or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband," Bozarth v. Largent, 128 Ill. 95, 21 N. E. 218; Jackson v. Jackson, 144 Ill. 274, 36 Am. St. Rep. 427, 33 N. E. 51 (see same case infra, | as to a later statute); Cole v. Van Riper, 44 Ill. 58; Beach v. Miller, 51 Ill. 206, 2 Am. Rep. 290;

-that "a married woman, in respect to all property held by her to her sole and separate use, shall have the same rights and powers as if she were unmarried" and that "the husband 'shall be entitled to his estate by the curtesy in all lands and tenements held by his wife, as if this act had not been passed'" (observe that this is limited to real estate held by her "to her sole and separate use"), Comer v. Chamberlain, 6 Allen, 166; Staples v. Brown, 13 Allen, 64;

-"that any real estate acquired by a female before marriage, or to which she may at any time after be entitled by inheritance, gift, grant, or devise, should be and continue her estate, and should not be liable for the debts or engagements of her husband." Hathorn v. Lyon, 2 Mich. 93; Hill v. Chambers, 30 Mich. 422; Brown v. Clark, 44 Mich. 309, 6 N. W. 679. But see Michigan cases cited under V. d, infra, as to effect of other statutes;

-that "it shall be lawful for any married female to receive, by gift, grant, devise, or bequest, and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues, and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable to his debts." Ross v. Adams, 28 N. J. L. 160, reversed in 30 N. J. L. 505, 82 Am. Dec. 237, on the ground that the wife's estate was only a life estate, hence, independently of the estate, no estate by the curtesy, either initiate or consummate, could vest in the husband, Porch v. Fries, 18 N. J. Eq. 204;

-that "any married female may take by inheritance, or by gift, grant, devise, or bequest from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and with the like effect as if she were unmarried. And the same shall not be subject to the disposal of her husband, nor be liable for his debts," Hurd v. Cass, 9 Barb. 366; Albany County Sav. Bank v. McCarty, 149 N. Y. 71, 43 N. E. 427; Collins v. Russell, 96 App. Div. 136, 89 N. Y. Supp. 414, affirmed without reference to this point in 184 N. Y. 74, 112 Am. St. Rep. 569, 76 N. E. 731, 6 Ann. Cas. 92; Hope v. Seaman, 119 N. Y. Supp. 713, affirmed in 137 App. Div. 86, 122 N. Y. Supp. 127, affirmed without opin

ion in 204 N. Y. 563, 97 N. E. 1106; Re Starbuck, 137 App. Div. 866, 122 N. Y. Supp. 584, affirmed without opinion in 201 N. Y. 531, 94 N. E. 1098; Clark v. Clark, 24 Barb. 581. There is considerable lack of harmony among the earlier New York decisions as to the effect of this statute upon the estate by the curtesy initiate, but the view here stated seems to have become the prevailing one. In Albany County Sav. Bank v. McCarty, 149 N. Y. 71, 43 N. E. 427, the court said: "Since the acts allowing married women to sell and devise their lands, a husband's right as tenant by the curtesy initiate, as to lands acquired since the passage of those acts, consists simply of a status, which is never a vested right, and is not separately alienable during coverture, but may be modified or annulled at any time before it becomes consummate by the death of the wife." However, in Re Starbuck, 137 App. Div. 866, 122 N. Y. Supp. 584, affirmed without opinion in 201 N. Y. 531, 94 N. E. 1098, the court, in holding that an estate by the curtesy consummate is not inherited from the wife by the surviving husband, so as to be taxable as an inherited estate, took the view that the statute simply postpones the vesting of the estate until the death of the wife, and makes it contingent upon her failure to convey it, etc. But apparently it did not regard this view inconsistent with the view taken by the court in Albany County Sav. Bank v. McCarty, as it said: "It is contended that curtesy initiate cannot exist, and that the husband has a mere status or possibility. Such was the decision in Collins v. Russell, 96 App. Div. 137, 89 N. Y. Supp. 414, affirmed without reference to this point in 184 N. Y. 74, 112 Am. St. Rep. 569, 76 N. E. 731, 6 Ann. Cas. 92, where, however, the court said that the common law 'still governs tenancy_by_the curtesy,' and Albany County Sav. Bank v. McCarty, 149 N. Y. 85, 43 N. E. 427. What then? Does it follow that when the husband does have such an estate in right and enjoyment it is because he inherited it from her as if he were heir? That seems a non sequitur." This was probably the view taken by the court of appeals when it affirmed the decision. In Re Winne, 1 Lans. 508, it was held that the statute abolished estates by the curtesy consummate as well as estates by the curtesy initiate, but all of the decisions cited, supra, are contrary to this view, and in the Starbuck case the court said: "The authoritative decisions are that the acts of 1848 and 1849 [the quotation, supra, is the act of 1848 as amended by that of 1849] have not interfered with nor affected the husband's estate in his wife's real property, if not disposed of by her either during life or by will. Hatfield v. Sneden, 54 N. Y. 280; Burke v. Valentine, 52 Barb. 412, affirmed in (Ct. App.) 6 Alb. L. J. 167; Ransom v. Nichols, 22 N. Y. 110; Barnes v. Underwood, 47 N. Y. 351; Leach v. Leach, 21 Hun, 381."

-that "any estate or interest, legal or

equitable, in real property belonging to any woman at her marriage, or which may have come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate money or means, shall, together with all rents and issues thereof, be and remain her separate property and under her sole control; and she may in her own name during coverture lease the same for any period not exceeding three years. This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease; but during the life of such wife or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or encumbered by him unless she shall join therein with him in the manner prescribed by law in regard to her own estate." Hershizer v. Florence, 39 Ohio St. 529. This statute was construed in connection with a long series of acts which had been construed to abolish estates by the curtesy initiate, but had preserved to the husband his estate jure uxoris and his estate by the curtesy consummate, even though there had been no issue. In this particular case the husband's estate jure uxoris had vested under the prior acts, so it was held that the statute quoted did not devest him of that estate so as to make the rents and profits from the land belonging to the wife during her life subject to her debts, but as no estate by the curtesy initiate could vest in him under the prior statutes, the legislature could and did, by the act quoted, make her debts a lien upon her real property without regard to his prospective right to an estate by the curtesy consummate. It could do this only because estates by the curtesy initiate had been abolished prior to his wife's seisin, and his estate by the curtesy consummate had not vested. But the act quoted also abolishes estates jure uxoris not vested at the date of its passage.

-that "the property and pecuniary rights of every married woman at the time of marriage, or afterward acquired by gift, devise, or inheritance, shall not be subject to the debts and contracts of the husband" (Constitution); that "the property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired, shall not be subject to the debts or contracts of her husband, and she may manage, sell, convey, or devise the same by will to the same extent and in the same manner that her husband can property belonging to him." Runyan v. Winstock, 55 Or. 202, 104 Pac. 417, rehearing denied in 55 Or. 209, 105 Pac. 895. The question before the court in this case was whether or not estates by the curtesy consummate had been abolished by these provisions, and it answered the question in the negative. There is no direct holding that estates by the curtesy initiate have been abolished by these provisions, but the court cites some cases to the proposition that the husband has no life estate in his wife's property during her life. The court also refers to an

other statute enacted in 1907 (Laws 1907, p. 152, chap. 87) that it says amends the Code so that "a new and different interest is given the husband in the realty of his wife in lieu of curtesy."

"that the real and personal property of any female who may hereafter marry, and which she shall own at the time of her marriage, and the rent, issues, and profits thereof, and any property, real or personal, acquired by a married woman as a separate and sole trader, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall be and continue her separate and sole property; and any such married woman shall have power to contract in relation thereto, or for the disposal thereof, and may sue and be sued, as if she were a feme sole: Provided, that her husband shall join in any contract in reference to her real or personal property other than such as she may acquire as a sole trader, and shall be joined with her in any action by or against her; and provided further, that nothing herein contained shall deprive her of the power to create, without the concurrence of her husband, a charge upon such sole and separate estate as she would be empowered to charge without the concurrence of her husband if this act had not been passed.

2. All real and personal estate hereafter acquired by any married woman, whether by gitt, grant, purchase, inheritance, devise, or bequest, shall be and continue her sole and separate estate, subject to the provisions and limitations of the preceding section, although the marriage may have been solemnized previous to the passage of this act; and she may devise and bequeath the same as if she were unmarried, and it shall not be liable to the debts or liabilities of her husband: Provided, that nothing contained in this act shall be construed to deprive the husband of curtesy in the wife's real estate, to which he may be entitled by the laws now in force, and provided further, that the sole and separate estate created by any gift, grant, devise, or bequest shall be held according to the terms and powers, and be subject to the provisions and limitations thereof, and to the provisions and limitations of this act so far as they are in conflict therewith.

"3. Any married woman may, in her own name, or by her next friend, file a bill in equity in any court having jurisdiction over the subject-matter, in the event of her husband's refusing, or being incompetent to unite in the conveyance or disposal of her separate estate; and if the court shall be of the opinion that the interest of the married woman will be promoted by a sale thereof, it may make such decree as may be neces sary to convey absolute title thereto." Breeding v. Davis, 77 Va. 644, 46 Am. Rep. 740; Alexander v. Alexander, 85 Va. 353, 1 L.R.A. 125, 7 S. E. 335; Campbell v. McBee, 92 Va. 68, 22 S. E. 807.

-that the wife's separate property and its rents, issues, and increase shall be her sole and separate property in all respects