Porter v. Bowers

Bartol, C. J., delivered the opinion of the Court. This is an action of trespass q. c. f brought by the appellant, a married woman, by her husband as next friend, against the appellee. It appeared in proof that the land on which the alleged trespass had been committed, was given to the appellant by her father in 1840. She being at that time the wife of Joshua S. Porter ; that she and her husband have ever since lived together, as man and wife, and have children born to them alive ; that they have continued ever since in the possession and occupancy of the land. The Circuit Court instructed the jury upon this state of facts “ that the land in question is not the separate property of the plaintiff, and that she is not entitled to maintain this action by her next friend, and that under the pleading and all the evidence in the cause the plaintiff is not entitled to recover.” There can be no doubt of the correctness of this instruction. The title to the land in fee, having been acquired by Mrs. Porter during her coverture, and before the Act of 1841, ch. 161, her husband became entitled jure uxoris to the possession thereof, and the pernancy of profits during [216] their joint lives, and as tenant by the curtesy upon her death if he should survive her. This title of his was not divested by the Act of 1841, ch. 161, or by the provisions of the Code of 1860. (Decided 13th January, 1881.) During the continuance of his life estate, he alone is entitled to sue for an injury to the possession or profits of the land; for an injury to the inheritance, the suit must he in the joint names of himself and wife. Rice, et al. vs. Hoffman, 35 Md., 349; 2 Kent’s Com., sec. 28. It is clear that the present suit cannot he maintained in the name of the feme covert by next friend. Bridges & Woods vs. McKinna, 14 Md., 269; Barr & Wife vs. White, 22 Md., 259. It follows that there was no error in rejecting the first, second and third prayers of the plaintiff. As to the fourth and fifth prayers offered by the plaintiff, and which the Circuit Court refused to receive or consider, under the rule of Court; no error can he predicated of the Court’s action in this respect, as it rested in its discretion. Bushey vs. Culler, 26 Md., 534. It may also be added, that as the defendant’s prayer was properly granted, the fourth and fifth prayers of the plaintiff, if they had been offered in time, must- have been rejected, and consequently no injury was done to the plaintiff by the refusal of the Circuit Court to receive or consider them: Judgment affirmed.