EJECTMENT for 749 acres of land in Mecklenburg; and upon the evidence the case was this: Thomas Davidson was seized of the premises, and devised them to his only child and heir, Mary L. Davidson, in fee simple, and died in 1801. The said devisee entered and died in 1802, intestate and without leaving issue, or brother or sister, or the issue of such, and leaving her mother surviving her. Just before her death her mother intermarried with William Davidson, and by that marriage she had issue four children: Margaret, born in 1803 (and eleven months after the death of Mary L. Davidson) and married to one Blake in 1822; Sarah, born in 1804, married one Johnson in 1824, and divorced a vinculo matrimonii 1830; Harriet, one of the lessors of the plaintiff, married in 1825 to David T. Caldwell, the other lessor of the plaintiff, by whom she has issue living; and William F. Davidson, born in 1810.

Upon the death of Mary L. Davidson, William Davidson entered into the premises, claiming them in right of his wife, as having descended to her from her deceased daughter. Mrs. Davidson, the mother, died in 1812. But William Davidson continued in possession of the premises up to 1823, when he sold and conveyed them by deed of bargain and sale in fee to John Black, who immediately entered thereupon and continued in possession until his death, and then the defendant entered, claiming as the son and heir of said Black, and has been in possession ever since. In May, 1833, Blake and his wife, Sarah Davidson, and William F. Davidson, by a deed of bargain and sale (purporting to be made by those persons, and by David T. Caldwell and his wife, Harriet, of the first part, but which was never executed by Caldwell and his wife), conveyed the premises in fee to the said Black, then in possession. William Davidson is still living. This action was brought on 29 August, 1844.

Thereupon, the counsel for the defendant insisted, that the land descended from Mary L. Davidson to her mother in fee whereby her husband, William Davidson, became entitled as tenant by the (465) curtesy, and that the plaintiff cannot recover during the life of the said William. But the court instructed the jury that, although the premises might have descended from Mary L. Davidson, immediately on her death, to her mother, yet upon the subsequent births of the lessors of the plaintiff, Harriet, and her sisters and brother, they took as the preferable heirs, to the exclusion of their mother; and, therefore, that William Davidson never was tenant by the curtesy of the premises.

The defendant's counsel further insisted that, although the lessor of the plaintiff, Harriet, would have three years after the coverture ended to enter or bring her action for the premises, yet the present action, upon the demise of David T. Caldwell and his wife, could not be sustained, because the husband was under no disability and he had suffered the defendant to continue in possession for more than seven years since his intermarriage. But the court refused to so instruct the jury and instructed them that the plaintiff was entitled to recover, notwithstanding such lapse of seven years.

The counsel for the defendant insisted thirdly, that the right of entry of the lessors of the plaintiff was barred because two of the coheirs were barred by the adverse possession of the defendant and his father for more than seven years after their disability ceased; namely, Sarah, who was divorced in 1830, and William F., who came to full age in 1831. But the court refused to give that instruction to the jury, and instructed them that, admitting the legal position taken for the defendant to be correct, yet by taking the deed in 1833 from Blake and wife, Sarah, and William F. Davidson, the defendant made himself tenant in common with the lessor of the plaintiff, Harriet, and his possession ceased to be adverse to her.

Under the foregoing instructions the jury found for the plaintiff. To the exceptions taken to the opinions of the court upon the foregoing points is added this further statement: That the defendant moved for a new trial, and thereupon made it appear that Mary L. Davidson left, surviving her, two paternal uncles and (466) the issue of a third, who was then dead; and thereupon it was insisted that Mary L. Davidson came to the land by descent from her father, and that upon her death it descended to her said uncles and cousins in fee, subject to a life estate therein of her mother; and, therefore, that the possession of William Davidson and his alienees was adverse to those persons, and that the statute of limitations began to run against them, and so continued to run against the sisters and brother of Mary L. Davidson, even if they, as they came in esse, succeeded to the inheritance in the place of the uncles and cousins. But the court was of opinion that it was not material in this case whether the estate descended to Mary L. Davidson or not, for if it did, as she had no paternal brother or sister of the whole or half blood, her maternal brethren would take in preference to the more remote collateral relations on the part of the father; and, that, although the uncles and cousins, if they had continued to be the heirs, might have been barred by the adverse possession against them, yet the possession could not operate against the preferable heirs, who were afterwards born; and, as the brother, William F. Davidson, was not born until 1810, he succeeded to no part of the premises, but the whole belonged to the three sisters. The court therefore refused to disturb the verdict; but, being willing that every question that could be raised should be presented for the decision of the Supreme Court, his Honor consented to annex this matter to the exception. From the judgment the defendant appealed.

RUFFIN, C. J.

The Court must protest against all attempts to raise points for decision here which did not occur on the trial of the cause. The rights of the parties are to be determined on the facts proved, and not on any supposed or suggested on a motion for a new trial. Such is the state of this case; for after the verdict, no further evidence, properly speaking, could be heard, and therefore the Court could not judicially know that Mary L. Davidson left uncles and cousins. That fact might, it is true, have been brought (467) forward as a reason for a new trial; but that would be on the ground of surprise or oversight of counsel, and would be exclusively for the determination of the presiding judge. If, then, there was any force in the last point made this Court could not act on it, but would, notwithstanding, be obliged to affirm the judgment. As we think, indeed, there is nothing in it, we have no objection in this case to express our opinion on it, as it may prevent further litigation.

We think all the points taken for the defendant extremely plain.

First. With respect to the title of the femme lessor of the plaintiff. It is immaterial whether the propositus took by purchase or descent, for that could only affect the right of succession of the mother and the paternal relations as between themselves; and in either case, that is to say, whether upon the death of M. L. Davidson, the land descended to the mother or the uncles and cousins, that descent was but temporary, and her posthumous brethren became entitled upon their births and divested the previous descent. This was undoubtedly a principle of the common law, Co. Lit., 11 b., and it prevailed in this State, and was adapted to the course of descent established by statutes here, until altered in 1823. Cutlar v. Cutlar, 9 N.C. 324. In that case, not only the general doctrine was acknowledged, but it was declared that it must prevail in a case of half-blood, where they are entitled to inherit. There is no doubt, however, that the propositus, being the sole heir of her father, took by descent and not by devise, as the will gave her the same estate precisely that she would have taken without it. Therefore, under the acts of 1784, the mother in this case was not entitled to a life estate, but the descent was immediately in fee to the paternal relations. University v. Holstead, 4 N.C. 289. But, in such a case, it was finally established in Ballard v. Hill, 7 N.C. 410, that the half-blood of the maternal line, in nearer (468) degree, was preferred by the acts of 1784 to the more remote collaterals of the paternal line; and, whatever doubts may have been formerly entertained or really existed on that question, it would be impossible for us, after that decision and the abrogation of the acts of 1784 by the legislation of 1808, to disturb it without producing the most serious evils. Consequently, according to Cutlar v. Cutlar, the birth of a child by the mother's second marriage displaced the estate of the uncles and cousins; and upon the subsequent birth of other children of that marriage, at least up to 1808, the inheritance opened to admit them as coheirs with those previously born, of whom the lessor of the plaintiff, Harriet, was one. The only remaining question upon her title is, as to the extent of her interest, in respect to the share of the land belonging to her, as raised upon the motion for a new trial. Upon that his Honor held, as the three daughters only were born before 1808 and the son, William F., was born in 1810, the latter was entitled to no part of the land, because by the fourth rule of the act of 1808, where the inheritance comes by descent to the propositus, it descends to the next collateral relations of the person last seized, who are of the blood of the ancestor, from whom it first descended; and, therefore, in this case, the uncles and cousins were preferable as the heirs to William F., and the estate vested in them at the death of the propositus would not be displaced for him. And we should think so too, if the question were between the brother and the paternal relations; for it is certainly competent to the Legislature, before a person comes in esse, to change the course of descent so that such a person shall not succeed as heir, although, but for such change of the law, he would have been heir at his birth. The heir takes, not by contract or any inherent right, but by law; and therefore the right of succession is subject to be modified as the Legislature pleases until some person comes into being in whom it vests. But in this case the question is not between those persons, but is between the sisters and the brother; for the right of the paternal relations had been divested by the birth of the first daughter, who took the whole, as against them, and subject not to be defeated, but only to open (469) for the benefit of afterborn brothers and sisters, and the inquiry is whether, according to the true construction of the act of 1808, such of those persons as were born before that time can insist on keeping the whole and excluding a child born afterwards. We think not. The principle of Bell v. Dozier, 12 N.C. 333, is directly in point. There is nothing in the statute which gives a preference to one brother or sister over another, according to the periods of their respective births. That is not the ground of the argument for the plaintiff against the admission of William F. Davidson. But it is that by the letter of the act he cannot inherit as a maternal brother of Mary L. Davidson because she left relations of the blood of her father, from whom the land descended to her. But it is manifest that he is excluded in that case, not on the ground of any unfitness that he should inherit, but on the ground that the paternal relations are the more proper heirs of land descended from the father. In other words, his claims are postponed to those of the paternal relations, solely for the sake of the latter. Therefore, when the paternal relations though existing, cannot inherit, it is the same thing within the purpose of the act as if they did not exist. Hence, it was said in Bell v. Dozier, the words "capable of inheriting" must be understood as added to the description of the paternal relations who are to exclude other nearer relations. And this principle is even the more applicable to the fourth and fifth canons than to the sixth; for the fifth canon is express that, when the inheritance is transmitted by descent and the blood of the ancestor from whom it descended is extinct, it shall then descend to the nearest collateral relations of the propositus of either line. So it is clear that, under the act of 1808, William F. Davidson, though born in 1810, would inherit with his sisters, if there had been no brothers of Thomas Davidson; and therefore, as they do not take, the accident of their existence at the death of Mary L. Davidson ought to form no impediment to his participating in the inheritance with his sisters. We are therefore of opinion that Mrs. Caldwell is (470) entitled to one undivided fourth part of the premises, and the defendant to the other three.

We should have been of opinion with his Honor upon the question, whether William Davidson was tenant by curtesy, even upon the supposition, that the propositus took by purchase, and that the descent was at first, to the mother. For the wife had but a defeasible fee, and the very fact necessary to constitute him tenant by the curtesy, namely, the birth of issue, defeated his title by the coming in esse of a preferable heir. But that is put entirely out of the case by the defendant's admission that the uncles and cousins were the heirs, and not the mother.

The objections founded on the statute of limitations are next to be considered. In relation to the possession of the premises by William Davidson, it is to be observed that it could not put the statute in motion even against the uncles, as he held without color of title. But if it had been otherwise, it would not have affected the after-born children, for a preferable heir does not succeed to the heir who first took, in the sense of coming in under him, and, therefore, to be bound by his acts. On the contrary, he comes in above him and defeats his estate altogether. Suppose the uncles had sold the estate before Mrs. Davidson had a child by her second marriage; clearly such a child, when born, would nevertheless take. Therefore the laches of the uncles cannot bar the infant heir if their acts could not.

Upon the point that the lessors of the plaintiff are barred because two of the coheirs were under no disability and would be barred by the possession of the defendant since 1823, under the deed of William Davidson, it is unnecessary to advert to the reasoning on which his Honor answered the objection — on which we give no opinion; nor to recur to any general reasoning from the positions that, although tenants in common must join in personal actions, yet that generally they must sever in real or mixed actions, because they have several freeholds and different titles. It is thus unnecessary because we have an adjudication of this Court upon the very point, in McRae v. Alexander, (471) 12 N.C. 321; in which it was held that in ejectment upon the demises of all the heirs, there should be judgment against the plaintiffs as to the shares of his lessors, who were under no disability, and for him as to the share of one who was under disability.

The remaining ground, that the action by the husband and wife cannot be sustained because seven years have run during the coverture and the female plaintiff must now wait until the coverture is ended before she can enter or sue, we must say is altogether new to us, and seems to be wholly untenable. In general, the husband and wife must join in actions for the recovery of the wife's lands. The freehold is hers, and the right of entry also, and an action brought by them survives to her. The object is to regain her seizin. Where they are in possession the husband cannot in pleading, allege the seizin to be in him, even though he adds that it is in right of his wife ( Polybank v. Hawkins, Doug. 329; Took v. Glasscock, 1 Saund. 250, e); but it must be stated that the husband and his wife were seized in their demesne, as of fee, in right of the wife. Such is the case, even when the husband and wife have been at one time seized during the coverture. Much more must the wife be joined when the object is to recover land of the wife of which there was an adverse possession at the time of the marriage and has been ever since; for the husband gains no estate in those lands by his marriage, nor until he enters and reverts the seizin. Gentry v. Wagstaff, 14 N.C. 270. Consequently, the husband could not bring an action in his own name alone, nor make a lease. It was said, indeed, at the bar, that the action was essentially that of the husband exclusively, as the wife had no capacity to make the supposed lease stated in the declaration, but the husband alone. But that must have been said without much research, as surely the capacity to convey in fee includes that of leasing for years. Besides, the Stat. 32 Hen. VIII, ch. 28, sec. 2, has been reenacted here, Rev. Stat., ch. 43, sec. 9, and that expressly enables husband and wife to make leases of her lands; and the lease set forth in the declaration, being a fiction, is always supposed to be good, if the lessors had capacity to (472) make any lease and had the right to enter into the premises, there to make the lease. But we need not further consider the question on principle; for this point also is concluded by the authority of adjudications. The same case of McRae v. Alexander, 12 N.C. 321, involves also the point before us, as more than seven years elapsed during the coverture of Mrs. Henderson, and the only demise, on which a recovery was had, was that by her husband and herself for her share; this being still a stronger case, because here the adverse possession began before the marriage, whereas there it commenced during the coverture. Besides, were it in action for personal things, which, when recovered, belonged wholly to the husband, the action of the husband and wife is saved from the operation of the statute against the husband by the disability of the wife. Allen v. Gentry, 4 N.C. 411; Davis v. Cook, 10 N.C. 608. Both of those cases also give to the plaintiff in this action the cumulative disabilities the female lessor of the plaintiff labored under, of infancy and coverture, from the commencement of the adverse possession to the bringing of this suit.

PER CURIAM. No error.

Cited: Williams v. Lanier, 44 N.C. 35, 36; Johnson v. Prairie, 91 N.C. 163; Cameron v. Hicks, 141 N.C. 36.

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