she has conveyed the property without his him the right to enjoy possession of, and joining in the conveyance. E (February 9, 1915.) RROR to the Chancery Court for Wilson County to review a judgment dismissing a bill filed to recover possession of certain real estate, and to recover damages for cutting timber therefrom, and rents and profits. Affirmed. The facts are stated in the opinion. Messrs. J. N. Adams and Seth M. Walker, for plaintiff in error: Plaintiff on his marriage became seised of a freehold estate, and on the birth of issue capable of inheriting, he became a tenant by the curtesy initiate, which gave I. In general. "Tenant by the curtesy of England is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee simple or fee tail, and has by her issue born alive, which was capable of inheriting her estate. In this case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England." 2 Blk. Com. 126. "The husband, by the birth of the child, becomes tenant by the curtesy initiate, and may do many acts to charge the lands, but his estate is not consummate till the death of the wife." Id. 128. This note does not include cases involving an estate by curtesy consummate. It does not include the questions arising out of the husband's rights or estate jure uxoris. (See distinction stated under II. infra.) It includes only cases turning upon or involving the husband's rights as the owner of an estate by the curtesy initiate. Many cases are cited herein as authorities on the rules and principles governing common-law curtesy initiate that are no longer authorities in the particular jurisdiction where decided, for the reason that there have been many statutory changes. Under V. infra, the effect of "married women's acts" is discussed with a view to il lustrate the indirect effect of these statutes upon estates by the curtesy initiate, but there are a great many statutes abolishing estates by the curtesy consummate which of necessity also abolish estates by the curtesy initiate, and no consideration can be here given to such statutes. The question as to a husband's insurable interest in his wife's real property by virtue of his estate by the curtesy initiate is considered in notes to Tyree v. Virginia F. & M. Ins. Co. 66 L.R.A. 659, and Kludt v. German Mut. F. Ins. Co. 45 L.R.A. (N.S.) 1131; and that of adverse possession as a bar of curtesy is treated in the note to Calvert v. Murphy, 52 L.R.A. (N.S.) 535. Questions as to how an estate by the curtesy initiate may be terminated (for instance, the effect of a divorce) are not entitled him to the emblements of, his wife's estate. Gillespie v. Worford, 2 Coldw. 640; 3 Eng. Enc. Law, p. 517; 12 Cyc. 1003; BrasAm. & Eng. Enc. Law, p. 513; 2 Am. & field v. Brasfield, 96 Tenn. 580, 36 S. W. 384; Ables v. Ables, 86 Tenn. 333, 9 S. W. 692. Messrs. W. R. Chambers and Horace Ozment, for defendants in error. The bill was properly dismissed. Weisinger v. Murphy, 2 Head, 674; Guion v. Anderson, 8 Humph. 298. Fancher, J., delivered the opinion of the court: This is a suit in the nature of ejectment, considered in the present note. And the fact of tenancy by the curtesy initiate is here assumed. An excellent statement setting forth many of the characteristics of an estate by the curtesy initiate is contained in National Metropolitan Bank v. Hitz, 1 Mackey, 111 (this case was reversed on the ground that an act of Congress had changed the law in regard to selling the property of a married woman to pay the debts of her husband. See 111 U. S. 722, 28 L. ed. 577, 4 Sup. Ct. Rep. 613. But that fact does not destroy the value of the statement). The court said: "By the uniform declaration of every authorized exponent of the law, from its earliest ages to the present time, it is incontestibly settled that by the common law the husband, from the moment of his marriage, became entitled by virtue of his marital rights to an estate in the lands of inheritance of his wife during their joint lives; that immediately upon the birth of a living child capable of inheriting the lands, the husband became entitled to an estate in all the lands of which she might be seised at any time during the coverture for the term of his own life; that this estate of the husband during the life of the wife, which was known as tenancy by the curtesy initiate, upon the death of the wife was called tenancy by the curtesy consummate, and that the tenancy by the curtesy initiate was one of the forms of estates known as freeholds, not of inheritance, which was created by construction and operation of law. 1 Co. Litt. § 35, p. 29a; 2 Kent, Com. 140; 4 Kent, Com. 27; 1 Roper, Husband & Wife, 3, 5. It is further settled beyond controversy that the husband was seised of this freehold as of his own right; that although his title was not consummate until the death of the wife, he might, during her life, do many acts to charge the lands. 2 Bl. Com. 120; 1 Washb. Real Prop. 128. That as such he became the tenant of the lord and did homage alone'; and if, after issue, he made a feoffment in fee and the wife died, the feoffee would hold during the life of the husband, and the heir of the wife could not, during the hus filed in the chancery court by Zeke Bryant | versy between husband and wife. The without making his wife a party, to recover wife had rented to one Harlow 20 acres a tract of land owned by Isa Bryant, his wife, and to also recover for timber cut from the land, and for rents and profits. The defendants claim to hold under a deed executed by Isa Bryant on September 22, 1910, for which she paid $800. The husband did not join in the deed. The bill avers the marriage, seisin of the wife, and birth of issue alive, which entitled complainant to an estate as tenant by the curtesy initiate, and it is in this right that the husband seeks to recover. The chancellor dismissed the bill for want of equity on the face. Ables v. Ables, 86 Tenn. 333, 9 S. W. 692, relied on by complainant, was a controband's life, recover the land. 1 Co. Litt. 558. That he might sell and convey his estate or mortgage it to a creditor. Central Bank v. Copeland, 18 Md. 320, 81 Am. Dec. 597; Babb v. Perley, 1 Me. 9. And that this interest would pass to his assignee in insolvency, who could sell and convey to the purchasers a valid title for the life of the husband. Dejarnatte v. Allen, 5 Gratt. 499. These common-law principles were undoubt edly in force in the District of Columbia at the time of the death of Michael Shanks, as they were the law in Maryland on the 29th of February, 1801, and no intervening acts of Congress had changed or modified their operation within the District of Columbia. Anderson v. Tydings, 8 Md. 443, 63 Am. Dec. 708; Logan v. McGill, 8 Md. 470; Rice v. Hoffman, 35 Md. 350. "2. The next inquiry is, Was this estate of John Hitz such an interest as might be seized and sold under execution at common law for the payment of his debts? The answer to this, upon all the authorities, must again be in the affirmative. Says Chancellor Kent: 'The husband has an interest in the freehold estates of his wife, which may be seized and sold on execution; and if the assignee or creditor of the husband, who takes possession of the estate on a sale on execution of his freehold interest, commits waste, the wife has an action against him in which the husband must join; for though such assignee succeed to the husband's rights to the rents and profits, he cannot commit waste with impunity.' See also Dejarnatte v. Allen, supra. The effect of a levy and sale of the husband's interest is the same as that of a conveyance by him, which would pass the freehold leaving the reversion in his wife. Babb v. Perley, 1 Me. 6; Litchfield v. Cudworth, 15 Pick. 23; 2 Kent, Com. 131; see also the numerous cases cited in Herman on Executions, 134. This doctrine has been repeatedly asserted, totidem verbis, by the courts of Maryland. Anderson v. Tydings, 8 Md. 427, 63 Am. Dec. 708; Logan v. MeGill, 8 Md. 470. The legislature of that state, to abate the hardship of the possible ejection of the wife under such a sale from her own inherited landed of her land, and placed him in possession. The husband objected to this, and brought a suit of forcible entry and detainer against the tenant. The wife then brought a bill to enjoin the prosecution of her husband's suit, claiming absolute control under the act of 1879 (Acts 1879, chap. 141), providing that the rents and profits of her land shall not be subject to the debts or contracts of her husband, except by her consent in writing. It was held that this act did not interfere with the ancient rights of the husband as governor of the family, but merely protects the wife's rents from the husband's creditors, and extinguishes estate, passed the statute of 1841, chap. 161; and in reference to the state of the law as thereafter existing, the court says in Rice v. Hoffman, 35 Md. 344: 'This interest of the husband (his curtesy initiate) was liable to be taken in execution and sold at any time for his debts until the act of 1841, chap. 161, which provided "that no real estate hereafter acquired by marriage shall be liable to execution during the life of the wife for debts of the husband." The effect of this act was not to destroy the tenancy by the curtesy, but to suspend the right of execution on the part of the husband's creditors during the life of the wife.'" Under the common law a tenant by the curtesy initiate has a vested freehold estate in the land. 1 Co. Litt. 30a, 67a; Evans v. Lobdale, 6 Houst. (Del.) 212, 22 Am. St. Rep. 358 (abolished by statute); Shortall v. Hinckley, 31 Ill. 219; Jacobs v. Rice, 33 Ill. 369; Mettler v. Miller, 129 Ill. 640, 22 N. E. 529 (changed by statute); Junetion R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618; Mitchell v. Violett, 104 Ky. 77, 47 S. W. 195 (changed by statute in 1894); Beale v. Knowles, 45 Me. 479; Tong v. Marvin, 15 Mich. 60 (abolished by statute); Day v. Cochran, 24 Miss. 261; Foster v. Marshall, 22 N. H. 491; Robie v. Chapman, 59 N. H. 41; Van Duzer v. Van Duzer, 6 Paige, 366, 31 Am. Dec. 257; Sleight v. Read, 18 Barb. 159; Williams v. Lanier, 44 N. C. (Busbee, L.) 30; Thompson v. Green, 4 Ohio St. 223; Canby v. Porter, 12 Ohio, 79; Hershizer v. Florence, 39 Ohio St. 516 (abolished by statute); Pemberton v. Hicks, 3 Dall. 479, 1 L. ed. 687; Lancaster County Bank v. Stauffer, 10 Pa. 398; Crow v. Kightlinger, 25 Pa. 343; Harris v. York Mut. Ins. Co. 50 Pa. 341; Clarke's Appeal, 79 Pa. 376; Teacle's Estate, 6 Pa. Co. Ct. 553, affirmed in 132 Pa. 533, 19 Atl. 274; Gamble's Estate, 5 Clark (Pa.) 4 (a statute abolishes the necessity for birth of issue); Martin v. Pepall, 6 R. I. 92; Ross v. North Providence, 10 R. I. 461; Briggs v. Titus, 13 R. I. 136; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 165; Gillispie v. Worford, 2 Coldw. 632; Mattocks v. Stearns, 9 Vt. 326; Hyde v. Barney, 17 Vt. 280, 44 his right to contract them away. The wife's | on the death of the husband; that the husbill was dismissed. band, by the marriage, acquires, and during the coverture enjoys, a freehold interest in his wife's real estate during their joint lives, both being seised in her right by entirety, the effect of which is to put the ownership for the coverture entirely in the husband's power; that he can, as a consequence, alienate his ownership at pleasure, and his conveyance will pass the freehold without the wife's co-operation, The case of Brasfield v. Brasfield, 96 Tenn. 580, 36 S. W. 384, cited by complainant, was a divorce suit, and it was held that the husband was entitled to the rents of the wife's lands upon dissolution of the marriage at the suit of the husband, under the statute (Milliken & V. Code, § 3329). In Gillespie v. Worford, 2 Coldw. 642, the wife had executed a power of attorney to the husband to convey her lands, under which he had executed a deed. The husband afterward abandoned the wife, and she obtained a divorce, thereafter bringing suit for the land. It was held that she could not recover, but the purchaser was vested with an estate of freehold, determinable Am. Dec. 335; Dejarnatte v. Allen, 5 Gratt. 499; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740. And the other cases cited herein assume the correctness of this proposition. II. To occupy land and receive profits. At common law the tenant by the curtesy initiate has the right to possession and absolute control of the property, and the right to receive the rents, issues, and profits therefrom. Neil v. Johnson, 11 Ala. 615; Shortall v. Hinckley, 31 Ill. 219; Jacobs v. Rice, 33 Ill. 369; Bozarth v. Largent, 128 Ill. 95, 21 N. E. 218 (changed by statute); Jackson v. Jackson, 144 Ill. 274, 36 Am. St. Rep. 427, 33 N. E. 51 (changed by statute); Beale v. Knowles, 45 Me. 479; Melvin v. Locks & Canals, 16 Pick. 161; Teckenbrock v. McLaughlin, 246 Mo. 711, 152 S. W. 38 (changed by statute); Foster v. Marshall, 22 N. H. 491; Williams v. Lanier, 44 N. C. (Busbee, L.) 30; Sleight v. Read, 18 Barb. 159; Corley v. Corley, 8 Baxt. 7; Mattocks v. Stearns, 9 Vt. 326; Hyde v. Barney, 17 Vt. 280, 44 Am. Dec. 335; Dejarnette v. Allen, 5 Gratt. 499; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740 (changed by statute). And in other cases cited throughout this note the courts assume this propo-debts. Tiedeman, Real Prop. § 101; Howey sition. It should be noted that the husband would have this right independently of his estate by the curtesy initiate, by virtue of his estate jure uxoris, which estate was not dependent upon the birth of a child. This note does not include questions concerning estates jure uxoris, but, merely for the purpose of distinction, the following statement is quoted from the opinion in Bozarth v. Largent, 128 Ill. 95, 21 N. E. 218: "At the common law, a husband held, in right of his wife, all her lands in possession, and owned the rents and profits thereof absolutely. 1 Washb. Real Prop. 276; Tiedeman, Real Prop. § 90; Haralson v. Bridges, 14 Ill. 37; Clapp v. Stoughton, 10 Pick. 463; Decker v. Livingston, 15 Johns. 479. The birth of issue was not necessary to this right of the husband, which continued during the joint lives of the husband and wife. The case of Weisinger v. Murphy, 2 Head, 674, is a case where the husband, Porter, and wife, had been deprived of the wife's land by a deed executed by a cotenant of the wife. The heirs of Mrs. Porter brought suit more than three years after her death. It was said: "During the existence of the It was called an estate during coverture, or the husband's freehold estate jure uxoris. Kibbie v. Williams, 58 Ill. 30; Butterfield v. Beall, 3 Ind. 203; Montgomery v. Tate, 12 Ind. 615; Croft v. Wilbar, 7 Allen, 248. It differed from curtesy initiate in its being a vested estate in possession, while the latter is a contingent future estate, dependent upon the birth of issue. Wright v. Wright, 2 Md. 429, 56 Am. Dec. 723. It is held in right of the wife, and was not added to or diminished when curtesy initiate arose. Subject to the husband's beneficial enjoyment during coverture, the ownership remained in the wife, and on dissolution of the marriage was discharged from such estate of the husband. Stewart, Husb. & W. § 146. Where there was marriage, seisin of the wife, and birth of issue capable of inheriting, the husband, by the common law, took an estate in the wife's land during coverture. This was an estate of tenancy by the curtesy initiate, and which would become consummate upon the death of the wife in the lifetime of the tenant. Upon the death of the wife, a tenant by the curtesy was seised of an estate of freehold, which was subject to alienation, and was liable to be taken on execution for his v. Goings, 13 Ill. 95, 54 Am. Dec. 427; Jacobs v. Rice, 33 Ill. 369; Cole v. Van Riper, 44 Ill. 58; Beach v. Miller, 51 Ill. 206, 2 Am. Rep. 290; Lang v. Hitchcock, 99 Ill. 550." III. To sell estate. a. In general. If one is the owner of a freehold vested estate in land with the right to possession and all the incidents arising out of the ownership, it logically follows that he may sell and transfer his estate, or that his creditors may levy upon and sell it in payment of his debts. The fact that he has only a life estate in the land cannot prevent this result. This rule applied to estates by the curtesy initiate often deprived the wife of the use of her property during the life of the husband, and the injustice. husband makes a conveyance of the lands of the wife, she not joining therein. There the husband, by his deed, has estopped himself from suing, and the wife cannot sue alone; nor can she or her heirs sue the husband's vendee until after the husband's death, and the case becomes one of particular estate and remainder, with the right of seven years in the wife or her heirs, to sue next after the husband's death.” Weisinger v. Murphy, 2 Head, 676, 677. coverture he is not tenant by the curtesy, | tirely different where there is no joint right and cannot be unless he survive his wife, of suit in husband and wife, as where the and therefore has no particular interest or estate separate from the fee simple estate in his wife. If there be a disseisin during the coverture, it is a disseisin of the entire joint estate, and they must jointly bring suit to recover the possession. And if they fail to do so, their joint right of action will be barred by seven years' adverse possession, and the husband's interest barred and extinguished, so that, if he even survive his wife, he has no estate or interest, and, if she survive him, she has, by the proviso in the statute, only three years next after their coverture shall cease within which to sue." It was said further: "The case is en thus wrought upon her soon inspired legis lation designed to remedy the evil. It is questionable whether this rule is enforceable with respect to estates by the curtesy initiate in any of the states at the present time, but no effort has been made to determine that fact, as only the common-law rule is here being considered. And the question as to whether or not a creditor of the husband can, notwithstanding statutes that enlarge the wife's powers and limit those of the husband, acquire, during the life of the wife, a judgment or interest that would be binding upon the husband's estate by the curtesy after the death of the wife, is not here considered, it being a question that affects only estates by the curtesy consum mate. b. By voluntary transfer. The husband as the owner of an estate by the curtesy initiate could, under the common law, sell and transfer his estate with out the consent of the wife. 3 Bacon, Abr. Curtesy of England (E), citing 1 Co. Litt. 30a, 326a, and 3 Dyer, 363b (26); Greneley's Case, 8 Coke, 72; Evans v. Lobdale, 6 Houst. (Del.) 212, 22 Am. St. Rep. 358; Shortall v. Hinckley, 31 Ill. 219; Jacobs v. Rice, 33 Ill. 369; Mettler v. Miller, 129 Ill. 640, 22 N. E. 529 (changed by statute); Butterfield v. Beall, 3 Ind. 203; Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618; Vanarsdall v. Fauntleroy, 7 B. Mon. 401; Mellus v. Snowman, 21 Me. 201; Central Bank, v. Copeland, 18 Md. 305, 81 Am. Dec. 597 (by mortgage); Bruce v. Wood, 1 Met. 542, 35 Am. Dec. 380 (an indirect holding); Teckenbrock v. McLaughlin, 246 Mo. 711, 152 S. W. 38 (changed by statute); Foster v. Marshall, 22 N. H. 491; Williams v. Lanier, 44 N. C. (Busbee, L.) 30; Fagan v. Walker, 27 N. C. (5 Ired. L.) 634; Pemberton v. Hicks, 3 Dall. 479, 1 L. ed. 687; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 165; Corley v. Corley, 8 Baxt. 7 (changed by statute); Gillespie v. Worford, 2 Coldw. 636. This right of alienation was indirectly recognized by an early Kentucky statute In Guion v. Andersor the question was whether Guion, the husband, was barred by the statute of limitations by a disseisin during the lifetime of the wife and after her marriage to Guion. He claimed an es(1798) which “provided that the husband's alienation of the wife's estate during the coverture, shall not prejudice her right, but that on his death, she may lawfully enter thereon, according to her title." Miller v. Shackleford, 4 Dana, 264. c. For husband's debts. The common-law rule is that creditors of the husband can cause a levy to be made upon his estate by the curtesy initiate, and sell the same under execution or other appropriate writs. Neil v. Johnson, 11 Ala. 615; Plumb v. Sawyer, 21 Conn. 351, citing Starr v. Pease, 8 Conn. 541, and Watson v. Watson, 10 Conn. 77; Evans v. Lobdale, 6 Houst. (Del.) 212, 22 Am. St. Rep. 358 (but statutes have changed the rule; see same case, V. infra) ; National Metropolitan Bank v. Hitz, 1 Mackey, 111, reversed in 111 U. S. 723, 28 L. ed. 577, 4 Sup. Ct. Rep. 613, on the ground that an act of Congress changed the law; Shortall v. Hinckley, 31 Ill. 219; Rose v. Sanderson, 38 Ill. 247; Cole v. Van Riper, 44 Ill. 58; Lang v. Hitchcock, 99 Ill. 550; Gay v. Gay, 123 Ill. 221, 13 N. E. 813; Bozarth v. Largent, 128 Ill. 95, 21 N. E. 218 (changed by statute); Jackson v. Jackson, 144 Ill. 274, 36 Am. St. Rep. 427, 33 N. E. 51 (changed by statute); Mitchell v. Violett, 104 Ky. 77, 47 S. W. 195; Beale v. Knowles, 45 Me. 479; Rice v. Hoffman, 35 Md. 344; Gardner v. Hooper, 3 Gray, 398; Litchfield v. Cudworth, 15 Pick. 23; Mechanics Bank v. Williams, 17 Pick. 438; Staples v. Brown, 13 Allen, 64 (changed by statute as to sole and separate estates); Day v. Cochran, 24 Miss. 261; Stewart v. Ross, 50 Miss. 776; Cunningham v. Gray, 20 Mo. 170 (modified by statute); Teckenbrock v. McLaughlin, 246 Mo. 711, 152 S. W. 38 (changed by statute); Churchill v. Hudson, 34 Fed. 14 (changed by a Missouri statute); Foster v. Marshall, 22 N. H. 491; Robie v. Chapman, 59 N. H. 41; Nicholls v. O'Neill, 10 N. J. Eq. 88; Van Duzer v. Van Duzer, 6 Paige, 366, 31 Am. Dec. 257; Wickes v. Clarke, 8 Paige, 161; Schermerhorn v. Miller, 2 Cow. 439; Sleight v. Read, 18 Barb. 159; Williams v. Lanier, life. He is not, however, solely seized, but jointly with his wife. The technical phraseology of the common-law pleaders to express the interest of the husband in the estate of his wife is 'that husband and wife are jointly seised in right of the wife.' Wood v. Savage, 2 Dougl. (Mich.) 329." Guion v. Anderson, 8 Humph. 325. In Corley v. Corley, 8 Baxt. 8, it was held that, if there be a disseisin during coverture, it is a disseisin of the entire joint estate, and husband and wife must tate by the curtesy, the wife having died, may, by possibility, last during his own there being issue born of the marriage to Guion. The court said: "In the language of the books, the estate is initiate on issue born, and consummate on the death of the wife. It cannot by possibility exist during the life of the wife, and may be defeated by alienation or death of the husband in her lifetime. At the time of the disseisin in this case it was entirely contingent and uncertain whether the interest of John Guion would continue beyond the coverture. He was not then seised of a particular interest or estate separate from the fee sim-jointly sue to recover possession; but where ple estate in his wife. By marriage the husband gains an estate of freehold in the inheritance of his wife, in her right, which may continue during their joint lives, and 44 N. C. (Busbee, L.) 30; Jones v. Coffey, 109 N. C. 515, 14 S. E. 84 (changed by statute); Canby v. Porter, 12 Ohio, 79; Burd v. Dansdale, 2 Binn. 80; Lancaster County Bank v. Stauffer, 10 Pa. 398; Curry v. Bott, 53 Pa. 400 (changed by statute); Harris v. York Mut. Ins. Co. 50 Pa. 341 (changed by statute); Clarke's Appeal, 79 Pa. 376 (changed by statute); Gamble's Estate, 5 Clark (Pa.) 4 (changed by statute); Teacle's Estate, 6 Pa. Co. Ct. 553, affirmed in 132 Pa. 533, 19 Atl. 274 (changed by statute); Martin v. Pepall, 6 R. I. 92 (modified by statute); Briggs v. Titus, 13 R. I. 136 (modified by statute); Greenwich Nat. IV. To maintain action for possession. Bank v. Hall, 11 R. I. 124 (changed by statute); Gillespie v. Worford, 2 Coldw. 632 (changed by statute); Mattocks v. Stearns, 9 Vt. 326; Hyde v. Barney, 17 Vt. 280, 44 Am. Dec. 335; Dejarnatte v. Allen, 5 Gratt. 499; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740 (changed by statute); Alexander v. Alexander, 85 Va. 353, 1 L.R.A. 125, 7 S. E. 335 (changed by statute); Welsh v. Solenberger, 85 Va. 441, 8 S. E. 91 (changed by statute); Wyatt v. Smith, 25 W. Va. 813; Guernsey v. Lazear, 51 W. Va. 328, 41 S. E. 405 (changed by statute). And it will pass by the husband's general assignment for the benefit of creditors under the insolvent laws. Gardner v. Hooper, 3 Gray, 398. And the purchaser of an estate by the curtesy initiate, at a judicial sale, can, during the life of the wife, maintain ejectment for possession, unless such right of action is taken away by statute. Plumb v. Sawyer, 21 Conn. 351; Mattocks v. Stearns, 9 Vt. 326; Hyde v. Barney, 17 Vt. 280, 44 Am. Dec. 335. A trust deed by the husband for the use of the wife, of his estate by the curtesy in her estate, may be set aside at the instance of prior creditors of the husband, as being a conveyance in fraud of their rights. Gay v. Gay, 123 Ill. 221, 13 N. E. 813. The Pennsylvania statute quoted under V. c, infra, prohibits the sale of the husband's estate by the curtesy initiate on any writ for his debts, and that feature of the the wife was forced by the cruel conduct of the husband to leave home, equity would grant her a fair proportion of the rents and profits secured for herself and children. act is strengthened by the act of 1863; but the creditor of the husband may by alleging title in the husband sell all his interest in the land in order to contest title with the wife on ejectment. If on the ejectment it appears that the husband's only interest is that of a tenant by the curtesy initiate, the purchaser of the husband's interest will hold nothing. So the husband cannot plead title in the wife in answer to a scire facias sur mechanics' lien against him, the allegation being that the property belonged to the husband. It seems to have been the common-law rule that, since the husband's estate by the curtesy initiate is a vested estate, he has the right to maintain an action in his own name for possession, for injuries to his estate, or infringements upon his rights as to the estate, but for injuries to the wife's reversion the action must be brought in her name and he be joined because of her incapacity. In Williams v. Lanier, 44 N. C. (Busbee, L.) 30, the court adopted the rule as here stated and reviewed many earlier authorities. It said: "By way of further illustration, if husband dies, the growing crops belong to his personal representative as emblements. This supposes him to have a separate estate in his own right; for, if he held the estate as a whole, with the wife in her right, at his death she takes the land, and, of course, all that is a part of it. A trespasser takes away the growing cropthe husband is the party injured; for it is his crop, and the action of trespass q. c. f. should be in his own name. Several old authorities were cited to show that he may join the wife. Baker v. Brereman, Cro. Car. 419, W. Jones, 367; Harbin v. Green, Hobart, 189. In Frosdick v. Sterling, 2 Mod. 269, it is said these cases warrant no more than that the wife may be joined, not that of necessity she must. But admit the wife may be joined, it proves nothing, because, to exclude the idea of a separate estate, it is necessary to show that the wife |