King v. . Little , 77 N.C. 138 ( 1877 )

This was an action brought by the plaintiffs as executors of Cinthia D. King against the defendant for mesne profits. The plaintiffs alleged that the defendant took possession of a tract of land belonging to their testatrix, whose right thereto had been determined in an action of ejectment (see King v. Little, 61 N.C. 484), which was prosecuted by C. C. King, Sr., and wife, Cinthia, jointly, until the death of the husband (139) in December, 1865, when it was prosecuted by Cinthia as administratrix and in her own right. Upon her death in 1869, her executors were made parties plaintiff, and took out a writ of possession. Little then obtained an injunction, which was dissolved in 1870. (See Little v. King, 64 N.C. 361.) And thereupon he surrendered the possession to the present plaintiffs.

It was further alleged that the wrongful possession of Little continued from January, 1861, until March, 1870, during which time he committed waste upon the premises by cutting down trees, etc.

The defendant admitted the material allegations of the complaint, but insisted that the plaintiffs could not recover the profits which accured during the coverture. Upon issues submitted, the jury found that the annual rent of the land from January, 1861, to March, 1870, was $50, and that no damage resulted from the waste alleged to have been committed.

His Honor held that the plaintiffs were only entitled to recover the mense profits which were received by the defendant from the date of the death of C. C. King, Sr. (25 December, 1865), to that of the plaintiff's testatrix (28 January, 1868). Judgment. Appeal by plaintiffs. All chattels personal which the wife has in possession in her own right are vested in the husband by the marriage, although he does not survive her. But with respect to her choses in action, they survive to her on the death of the husband, unless he shall have interfered by doing some act reducing them into possession.

At the date of the demise in the action of ejectment the land belonged to the wife, and the demise was laid in the name of the husband and wife. Upon the death of the husband, the action survived to (140) the wife, and, upon her death, to her heirs and devisees, by whom a recovery of the possession was ultimately had. If the husband and wife were entitled to the possession of the land in right of the wife during their coverture, in the same right and for the same time they were entitled to the profits of and the damages done to it, and as upon the death of the husband the land and the action to recover the possession survived to the wife, in the same way the right to the mesne profits and damages for waste which pertained to the realty also survived to the wife.

No question is made but that the executors of the wife are entitled to recover the mesne profits which accrued between the death of the husband and the death of the wife, but it is insisted that they cannot recover those which accrued during the coverture; that is, between the date of the demise and the husband's death. But as the right to these profits was a chose in action of the wife not reduced into possession by the husband in his lifetime, no reason is given why, upon his death, these mesne profits and the right to recover them do not survive to the wife.

The general principle is that arrears of rent accrued in the lifetime of the husband belong to the wife in preference to the husband's executors. Thus, if the husband die before the wife, and rent is in arrear which was reserved to them jointly on an underlease of the wife's leasehold estate, she will not only be entitled to the accruing rent, but also to the arrears, because they, remaining in action and being due in respect of the joint interest of the husband and wife in the term, would, with their principal, the term, survive to the wife. 1 Roper, Husband and Wife, 175; 1 Williams on Executors, 761, 762. So if a husband be seized of a rent service, rent charge, or rent seck in right of his wife, and the rent be in arrear during coverture, and then the husband dies, the wife shall have the arrearage, and not the executors of the husband, (141) because the principals which survived to her carried also all that was due in respect of them. Co. Litt., 351b; Temple v. Temple, Cro. Eliz., 701; 1 Williams on Exrs., 762, 763.

When the husband was seized or possessed of tithes in right of his wife or jointly with his wife, and the husband died, it was held that the wife, and not the executors of the husband, should have an action for the subtraction of such titles. So if an estray comes into the manor of the wife, and the husband dies before seizure, the wife shall have it, for that the property was not in him before seizure. Co. Litt., 351b; Williams on Exrs., 763; Bac. Ab., title, Tithes F.

These examples are sufficient to show that in the cases of rents, tithes, etc., not only that which was current at the husband's death, but also that which was in arrear, survived to the wife; and as in our case the mesne profits are of the nature and stand in lieu of the rents, no practical distinction can be drawn between the rights of the wife in the latter case and the former.

The wife, therefore, at her death was entitled to all the mesne profits and damages for waste, and her executors are entitled to recover all which accrued between the date of the demise and the death of the wife; those which accrued after her death, and until the premises were vacated by the defendant, belong to the devisees and heirs, and cannot be recovered in this action.

It is admitted in the answer that the husband, C. C. King, died 25 December, 1865, and that the action of ejectment was begun 15 January, 1861. From the latter date to the death of Mrs. King, to wit, 28 January, 1868, the plaintiffs are entitled to recover against the defendant (142) at the rate of $50 per annum, the assessed value of the mesne profits as fixed by the verdict of the jury.

The statute of limitations does not bar the action. Judgment reversed, and judgment here for the plaintiffs in accordance with this opinion.

PER CURIAM. Reversed.

Cited: Matthews v. Copeland, 79 N.C. 494.