McCaskill v. . McCormac

*550 Davis, J., (after stating the facts as above). The single, and only question before us, is as to whether his Honor was correct in refusing to give the charge asked for by the defendant. It is insisted for the defendant, that under the Act of 1848 (Code, § 1840,) the sale made by the Sheriff, under which the plaintiff purchased, was void. Under the provisions of that Act, no real estate belonging to a married woman “ shall be subject to be sold or leased by the husband, for the term of his own life, or any l§ss term of years, except by and with the consent of the wife, first had and obtained, to be ascertained and effectuated by deed and privy examination, according to the rules required by law for the sale of lands belonging to femes covert. And no interest of the husband whatever in such real estate shall be subject to sale to satisfy any execution obtained against him, and every such sale is hereby declared null and void.” The only authority cited by the learned counsel for the defendant, to sustain the construction contended for by him, is Jones v. Carter, 73 N. C., 148. Whether or not the effect of the Act of 1848-'9, “ is to deprive the husband of his right to acquire an estate for life as tenant by the curtesy initiate,” which is all that was involved in the case of Jones v. Carter, it has never been claimed or held, that the Act.deprived him of his right to the estate for life, in the lands of the wife after her death, as tenant by the curtesy consummate. It is well settled to the contrary. The Act (Acts 1848-'9, Chap. 41,) is entitled: “ An Act making better and more suitable provision for femes covert,” and the clear and manifest purpose of it was to protect and preserve the rights of the wife during her life, and prevent any disposition of her lands, by reason of the husband’s rights as tenant by the curtesy initiate, without her assent, evidenced by her privy examination. *551 We understand it to be conceded that this is so as to the first sentence in the Act, which relates to the sale or lease by the husband, because the privy examination of the wife can onty be had during her life, but it is insisted that it does not apply to the following sentence, which, prohibits the sale under execution. Aside from the language of the sentence, “ no interest of the husband whatever in such real estate”— clearly meaning such interest only as is embraced in the first sentence — the “reason of the thing” is against the construction insisted upon by the defendant. But we think it is settled, by abundant authority, that the purpose of the Act was to protect the wife, leaving the right of the husband, and of course his liabilities, unimpaired and unrestricted after her death. This construction is too well settled to be-disturbed now. Houston v. Brown, 7 Jones, 161; Long v. Graeber, 64 N. C., 431; Teague v. Downs, 69 N. C., 280; Wilson v. Arentz, 70 N. C., 670; State v. Mills, 91 N. C., 581; Morris v. Morris, 94 N. C., 613, and the cases cited. There is no error. Affirmed.