Opinion
(June Term, 1849.)
Where on a divorce a mensa et thoro the wife is allowed, in part of alimony, the rent of certain lands, out of which she makes an annual saving, the husband has no right to the amount accumulated out of such saving.
APPEAL from the Superior Court of Law of GREENE, at Fall Term, 1848, Settle, J., presiding.
J. H. Bryan and J. W. Bryan for plaintiff.
Rodman for defendant.
This was an action of assumpsit. The questions were presented to the court upon the following case agreed:
Elizabeth Rogers, the wife of Stephen Rogers, the plaintiff's testator, in 1837 was divorced from bed and board, and allowed, as alimony, one-third of the annual rent of a tract of land and the service of three negroes.
Her part of the rent amounted to $60 per annum, which she regularly received. In 1838 she sold the negroes to one Vines for $1,000, and gave him a bill of sale with warranty of title. In 1841 Elizabeth Rogers made a paper-writing in the nature of a last will and testament, which was, after her death, admitted to probate in 1845. By it she disposed of such money, notes and effects as she had at her death, making the children of the defendant, with whom she had boarded since her divorce, without charge, her legatees. The defendant took out letters of administration with the will annexed, and possessed himself of her estate, amounting to $2,046.21. The items consisted of the $1,000, and interest, received of Vines for the sale of the negroes; several notes, which were her savings out of the amount of the rent of the land, annually received; a few articles, acquired by her own industry, such as bedquilts, etc.
After the death of Elizabeth Rogers, Stephen Rogers instituted an action against Vines, the vendee of the negroes, and recovered and received from him their value. See (340) Rogers v. Vines, 28 N.C. 293. Rogers died in 1847, having appointed the plaintiff his executor. The defendant, without suit, paid to Vines the $1,000 and interest which he had paid Mrs. Rogers for the negroes and for which he held her warranty, after the recovery by Stephen Rogers. Plaintiff demanded of defendant the entire sum of $2,046.21. Defendant refused to pay any part.
It is agreed that if the plaintiff be entitled to recover of the defendant the amount received by Mrs. Rogers for the negroes with interest, and the amount saved by her out of the rent, the plaintiff should have judgment for $2,004.62. If the plaintiff be entitled to recover the price of the negroes with interest, but not the savings out of the rent, then judgment is to be entered for $1,562.37. If the plaintiff be entitled to recover the savings out of the rent, but not the price of the negroes, then judgment is to be entered for $442.03, unless the defendant be entitled to commissions, which deduction would leave a balance of $332.53, for which judgment is to be entered. If the plaintiff be entitled to neither sum, then judgment to be entered for the defendant.
His Honor directed judgment to be entered for the plaintiff for the sum of $332.53, from which judgment both the plaintiff and defendant appealed.
We think the plaintiff was not entitled to recover, either the price of the negroes or the savings of his testator's wife, out of the annual rent received by her, and that judgment should have been entered for the defendant.
As to the price of the negroes, the plaintiff was not entitled to recover. Rogers had received of Vines the value of the negroes, thereby repudiating the sale made by his (341) wife, and in no point of view could the money paid by Vines to Mrs. Rogers be considered the money of her husband. After the divorce, the wife had a right "to sue and to be sued, claim redress for and be made liable upon contracts, as though she were a feme sole." By the sale of the negroes, although the sale was wrongful, the money became hers, and she was liable upon the warranty.
The view presented by the plaintiff's counsel is not tenable, for, admit "the contract of sale to have been a perfect nullity," the money handed to Mrs. Rogers was not the money of Rogers, but was the money of Vines, received for the use of Vines.
As to the savings out of the rent, we think the plaintiff was not entitled to recover. After the divorce the wife had "capacity to acquire and dispose of such property as she might procure by her own industry, or as might accrue by descent, devise, etc., or in any other manner."
It might be urged with much force that "these savings" fall under the words "property acquired by her own industry," for, if a wife pays her board by working, and thereby is enabled to save a part of the sum annually allowed for her maintenance, it is the same thing as if she had paid her board out of the sum allowed and received wages for her work. But the right of the wife to her savings is unquestionable, upon the ground that the decree of alimony vests the title in her. If there is no reconciliation, she has an absolute right to the sum allowed and received annually for her maintenance; in which respect it differs from specific property assigned to her separate use. If the allowance be too much, the court has power at any time to reduce it — if too little, to increase it; and thus it is at all times subject to the control of the court, and it tends to make the wife industrious and economical to allow her to have the savings.
It is not necessary to decide whether the wife had (342) capacity to make a will under the word "dispose." If she had capacity, she has exercised it. If the word "dispose" is confined to sales or gifts in her lifetime, so that she died without making a disposition, the act provides that her estate "shall be transmissible in the same manner as though she were unmarried." This excludes the husband, and, take it either way, he has no right.
The judgment below must be reversed and a judgment be entered for the defendant.
PER CURIAM. Judgment accordingly.