Franklin County NcArchives Court.....Abijah Carter, N. A. Jones & Wife, Harriet Jones V. 1875
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Connie Ardrey n/a October 30, 2011, 5:24 pm

Source: N C Reports
Written: 1875

N. A. Jones & wife, Harriet Jones v. Abijah Carter

Since this act of 1848, a husband, as tenant by the curtesy initiate, is not 
empowered by law to dispose of his life estate in the lands of his wife, yet 
still as he is entitled to the rents and profits of the same, during the 
coverture, or until such time as the wife objects to such claims by him, by 
reason of her complete ownership, he can dispose thereof.

This was a Civil Action, to recover real estate, and damages for its 
occupancy, tried before his Honor, Judge Henry, at Fall Term, of Franklin 
Court, upon the following case agreed:

1. The plaintiffs, N. A. Jones and Harriet, his wife, were married before the 
year A. D. 1848, and had issue born alive and are now living.

2. By deed dated the 13th of July, 1855, H. L. Perry, brother of the feme 
plaintiff, conveyed the land mentioned in the pleadings to his sister, the 
feme plaintiff. This deed was not proved until the 17th of March, 1873, and 
was registered on the 3d of the following June. The defendant had no knowledge 
of its existence till just before the institution of this action.

3. On the 13th day of May, 1859, the plaintiff, N. A. Jones, sold the said 
land, about eighty-five acres, to the defendant, Jno. Chamblee, for the sum of 
three hundred dollars, and made and delivered to him a deed therefor; and he, 
said defendant, has been in possession, receiving the rents and profits of 
said land since the delivery of said deed. The feme plaintiff, Harriet, did 
not join her husband in the making and execution of the said deed to Chamblee.

Upon the foregoing facts, his Honor adjudged, ordered and decreed that the 
plaintiff Harriet Jones recover the said land, and that a writ of possession 
issue, &c. And further, that said plaintiff is entitled to the rents and 
profits of said land from the date of the deed to said defendant, Chamblee, 
and that it be referred to the Clerk to state an account thereof, and report, 
&c., and that defendant pay costs.

From this judgment defendant appealed.

Battle & Son & Davis, for appellant
Batchelor & Lewis, contra

NC Supreme Court Justice Pearson, C. J. - At common law a husband, after the 
birth of issue, became entitled to an estate for his life as tenant by the 
curtesy initiate, and had a right to convey his estate.

This land was acquired by the wife after the act of 1848. Admit that the 
effect of that act is to deprive the husband of his right to acquire an estate 
for life as tenant by the curtesy initiate, which is the only mode by which 
the provision that he shall not dispose of the land for his life can be 
carried into effect; still the husband was entitled to the rents and profits 
during the coverture, until such time as the wife objected to it and set up 
her claim by reason of her ownership of the land. This she did not do until 
the commencement of this action, May 5th, 1873. It follows that one who 
purchased from the husband has a right to recover the price paid for the 
supposed life estate of the husband under his warranty, so as to recover rents 
and profits up to the commencement of the action. The judgment below will be 
modified so as to allow Mrs. Jones, the feme plaintiff, damages for the rents 
and profits only from and after 5th of May, 1873.

This opinion will be certified
Per Curiam
Judgment accordingly

Additional Comments:
In the NC Supreme Court June Term 1875

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