Faircloth v. Borden.

The plaintiff is a daughter of the late Council Wooten, of Lenoir County, and was married to the defendant's testator, William T. Faircloth, on 10 January, 1867. Her father died intestate on 22 August, 1872, from whom the plaintiff inherited valuable real estate in Onslow County, as tenant in common with her sister, Mary L. Wooten. Soon after the death of plaintiff's father, defendant's intestate took charge of said property, rented or leased the same, collected the rents and paid over and accounted to the said Mary L. for one-half thereof; that he finally effected a sale of said property upon time, taking note and mortgage on said land as security for the purchase money. That the deeds to purchasers were executed by defendant's testator and wife, the plaintiff E. E. Faircloth, and the said Mary L., and the mortgage to secure the same was executed to the plaintiff and her sister, the said Mary L. From time to time defendant's testator collected and received the interest due on the note given for said lands, and finally received all the purchase money remaining due thereon, principal and interest, and accounted for and paid over to the said Mary L. one-half thereof, but never accounted for or paid any part of the rents, interest or principal, to the plaintiff. In these transactions, in making leases and in receiving rents, interest and principal money, defendant's intestate signed his own name, adding the word "agent." In his last will and testament he devised to the plaintiff certain real estate, in which is said, "This devise is in lieu of all moneys I received from her property in Onslow County, North Carolina."

The plaintiff in due time dissented from said will and brought this action, in which she claims one-half of all the money the intestate received from the Onslow property, whether it was received as principal, interest, or rents. The defendant answers and denies (265) her right to recover the same, especially that part his intestatereceived as rents and interest, and specially pleaded and relied on section 1837 of The Code as a bar to her right of action thereon.

The case was, by consent, referred to George Rountree, Esq., to take and state an account of the matters involved in the controversy, which he did, and reported that defendant's testator had received as rents $8,568.24; as principal on purchase of said land, $20,568.15; as interest on purchase money, $7,833.16 — making in the aggregate $36,969. 55, of which sum the plaintiff and Mary L. Oliver (nee Wooten) were each entitled to one-half; but the defendant's testator had received said money withoutobjection from plaintiff. From the facts so found, he concluded, as matters of law, that the plaintiff was not entitled to recover any part of the $8,568.24 received as rents, nor any part of the $7,833.16 received as interest, but was entitled to recover half of $20,568.15 received as principal money, this representing the corpus of the estate inherited by the plaintiff from her father.

But plaintiff not being satisfied with referee's findings of fact, nor his conclusions of law, excepted to both, and upon a hearing upon report and exceptions before Robinson, J., he found, instead of the sixth finding of the referee, as follows: "Instead of the finding of the referee, it is found as a fact that the defendant's testator received said sum of money as the agent of the plaintiff and her sister. It is further found, at the request of the defendant, that there was no evidence of any express agreement on the part of defendant's testator, to account for any part of the same, except such as was embraced in the fact that he received it as agent."

If it were necessary to account for defendant's testator signing himself as agent, it might be said that he was the agent in fact of his sister-in-law, Mary L., and it was altogether proper that he (266) should so sign his name, for that reason, but we do not think it necessary to do this, as we think by law he was the legal agent of his wife, the plaintiff, to receive these rents and the interest on the purchase money, unless she objected to his doing so.

These rents and interest belonged to the plaintiff under the Constitution of the State and section 1837 of The Code, which is as follows: "The savings from the income of the separate estate of the wife are her separate property. But no husband who during the coverture has received, without objection from his wife, the income of her separate estate, shall be liable to account for such receipt for any greater time than the year next preceding the date of a summons issuing against him in an action for such income, or next preceding her death." This section anticipates the receipt of such income by the husband. It is not his, but the statute anticipates that he will receive it — not as his, because it is not his, but as the agent of his wife, in fact or in contemplation of law. In Baker v. Jordan, 73 N.C. 145, the Court, in speaking of the relations of husband and wife, under the Constitution of 1868 and the statutes enacted since its adoption, say the wife's property is no longer the husband's; but as to her property, "he is bound to account for profitsreceived out of her estate if called as such overseer or bailoff . . . to account and pay over within one year." The words overseer and agent are used as convertible terms in section 161 of Wells' Separate Property of Married Women. They are so used, we think, in section 1837 of The Code, and we do not think it made any difference whether defendant's testatorreceived these rents and interest by plaintiff's express direction or by that implied by the statute; for if he received them either way, it did not make them his money. They still belonged to the plaintiff, and she might have recovered them if she had brought suit in time. But section 1837 is a statutory bar to her recovery, if her husband received (267)them without her objection, and she did not bring suit in one year for the same. This is too plain to admit of argument, and is sustained by what is said in Battle v. Mayo, 102 N.C. 439, and George v.High, 85 N.C. 103, cases cited by plaintiff. But we do not understand plaintiff to dispute this being the law where the money is received without objection; but she contends that the fact that defendant's intestate received this money as agent shows that she objected to his receiving it at all. This is what it must prove to enable her to recover; and in our opinion it does not prove or tend to prove this, but if it prove anything, it proves that she was willing for him to receive it, and did not object tohis doing so. As we have said, Battle v. Mayo, 102 N.C. 413, sustains the views of the defendant, while it sustained an action on several notes given by the husband for the incomes of the wife's property. This is sound law; the incomes were the wife's, and furnished a good consideration for the notes, and that action was to enforce the collection of the notes. The question as to whether she objected to her husband's receiving the money or not was in no way involved, and is not authority for the plaintiff in this case. As we do not think it makes any difference how defendant's intestatereceived this money, the plaintiff can not recover it (that is, rents and interest), unless she objected to his receiving it, and as we are of opinion that the fact that he signed his name as "agent" is no evidence that she objected to his receiving it, and as it is found as a fact there was no other evidence that she objected, we do not think she can recover anything but the principal and such interest as has accrued since the commencement of this action. There is error, and the report of the referee should have been confirmed.

Error.

Cited: Perkins v. Brinkley, 133 N.C. 161; Stout v. Perry, 152 N.C. 313.

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