Mazetti v. Armour & Co.

Mellen C. J.
The facts in this case present some questions, respecting which Judges and Counsellors have taken different views.—They appear somewhat novel and we do not find that they have received any express judicial decision.— We have examined the cause with much attention, and after some vibration of opinion have at length arrived at a result with which we are all satisfied.
The facts reported by the Judge who sat in the trial of the cause led the counsel, in the argument, to the consideration of two questions; and it may be convenient for us to pursue the same course.
The
first
inquiry is, “ What were the
rights
and
liabilities
of “
Babb
in virtue of his acquiring a freehold estate in right of his “ wife in the land in question, and in consequence of his dc- “ stroying or selling and disposing of the wood or timber grow- “ ing on the land ?”
The
second
inquiry is, “ What are the
rights
and
liabilities
“ of Perley, as
assignee
of said
Babb
and owner of his former “ interest in the land, in virtue of his ownership and conse- “ quent upon
his
destroying or selling and disposing of said “ wood and timber ?”
With respect to the
first
question, it may now be observed that the land on which the trees were cut by
Perky
is admitted to be a wood-lot, uncultivated, and in a state of nature.
When a man marries a woman who is seized in fee of lands, he thereby gains a freehold in her right.—He acquires a
life
estate. ft will be an estate for the
life of the wife
only,—(unless he be tenant by the curtesy) in case he should survive her; or an estate for
his own
life, in case she should survive him ■ because the law presumes that the coverture will continue until the death of one of the parties.-“ He does not be“come, by the marriage, absolute proprietor of the inherit-•l anee; but as the governor of the family, is so far the master
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“ of it, as to
receive the profits of it
during her life.”
Co. Lit.
351. 2
Bl. Com.
433.
Barber v. Root,
10
Mass.
261
. These profits,—this
usufruct
of the wife’s lands, the husband may dispose of according to his pleasure, without or against her consent.
For any injury to the annual profits, or for taking away the emblements, the husband may maintain an action against the wrongdoer, in
his own
name, without joining the wife. But for an injury to the
inheritance,
as for cutting down the timber growing on the wife’s land, he cannot maintain such action
without joining the wife;
for the damages will survive to her. 3
Lev.
403.
Vern.
82.
Reeves Dom. Rel.
130. 133.
These cases mark the distinction between the rights of the husband and those of the wife in relation to the lands of which they are seized in
her
right.-If, then, the husband has a right only to the
usufruct
or profits of his wife’s lands, the question is, what were the rights which
Babb
had in the land above-mentioned, and what control over it? Could this land yield
any profits,
according to the legal signification of the term? Some light may be thrown upon this point, by considering the principles of the decision in the case of
Conner v.
Sheppard,
15
Mass.
164
. In this case the Court decided that a widow could not by law be endowed of lands in a wild and uncultivated state ; and the reason assigned by the Court is, that “ of a lot “ of wild land, unconnected with a cultivated farm, there
are no
“
rents
andprofits.'"—Again they say, “ In many instances the “ inheritance would be prejudiced without any actual ad- “ vantage to the widow to whom the dower might be assigned.— “ For according to the principles of the common law, her estate “ would be forfeited, if she were to cut down any of the trees “ valuable as timber.—It would seem too, that the mere change “ of the property from wilderness to arable land, or pasture, “ might be considered as waste.”--“ The very
clearing of
“
the
land—would be
actually,
as well as technically, waste of the “ inheritance.”
In the case of
Sargeant
&
al. v. Towne,
10
Mass.
303
. the Court determined that a devise of wild and uncultivated land carried a
fee
without any words of inheritance ;—because a
life estate
would be of no use to the devisee.—He
would
not, even
*9
if he
could
without committing
waste.,
undertake the cultivation Of the land devised.
« It would seem from the authorities above cited, that the plaintiff Babb, prior to the extent of
Perley's
execution, had no
right
to cut down the timber on his wife’s land, or to do those acts which, in the case of a tenant for life, or years, would
be
waste.—It is true
Babb
had the
power
to do it: and so he had
thepozver
to pull down a house, had there been one on the land; or to beat and wound his wife ;—but not the
right
to do this;—because, in the
last
case, he would be indictable for the offence:—and, we believe that a Court of Chancery would prohibit a husband from a wanton destruction of the wife’s house or property.--The wife, in all these cases, is destitute of the usual remedy by action for damages against the husband for this or any other injury to her inheritance ; because a wife can in no case sue her husband.-—The agreement to marry.; and the consequent marriage, amount to a
waiver
of this right of action against each other.—This principle is founded on reasons of sound policy. But it does by no means follow that because the husband has the
power
of doing many acts prejudicial to the interest or inheritance of his wife with
impunity,
that he can assign and transfer this power to a
third person,
and give him this privilege of impunity.—in
this
situation of parties policy does not require that this impunity should exist; and therefore it does not exist.
As to the
second
question, we would observe that whatever were the rights and liabilities of
Babb
as husband,' those of
Perky
the assignee seem to be more defined and better explained ; and if any doubt remain as to
Babb's
rights before the extent of
Perky's
execution, the cause may be decided on this
second
point by the application of principles well settled and understood.
It is admitted that the extent of
Perley's
execution against
jBabb,
upon his estate in the land in question, operated to transfer and convey to
Perley
all
Babb's
interest or estate in such land.-—It certainly could not convey any more, though it might place the estate in a different situation in respect to
other
persons. Let us then suppose that, instead of this extent,
Babb
had by his deed conveyed to
Perley
all his right, title and in-
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tercst in and to the land belonging to his wife.—-The facta, would then present to us no other than the common case of the division of a fee simple estate, into a
freehold
and a
reversion.
The
freehold
or
life estate
would be in
Perky ;
and the
reversion
would be in
Babb’s
wife ; because
Babbf her
husband, had not, and could not have any control over this reversion.—Nothing short of a deed signed by
her
as well as by him could operate to convey it to Perky.—The extent lias not affected,, in any degree, her
reversionary
interest. Perky, then, being only
tenant for life
of the land in virtue of the extent of his execution, he could not lawfully commit waste.—it would be inconsistent with his estate.
The act complained of is the cutting and carrying away and
selling
about forty cords of wood. Of course, it was an act which a tenant for life has no right to do; it was not for firewood nor fences ; it was neither for
building nor
repairing,
In- the case before us,
Mrs.
Babb, the reversioner, sues
Perky
for committing this waste on her
inheritance.
Her husband is joined in the action, not because he has any interest; for that has already been legally conveyed to
Perky ;
but because a feme covert can never
sue
alone, unless in two or three special cases, forming exceptions to the general rule.—And now, we may ask, why should not the action be maintained ? if if should be urged, that it will be prejudicial to the rights of the husband’s creditors, by depriving them of the power of converting the lands levied upon to any profitable use ; the answer fe the
creditors
of the husband cannot have any more control-of the wife’s land than the husband
himself
had. The creditors may avail themselves of the
profits
of the wife’s land in-satisfaction of their demands against the husband; but if there
are no
profits, it is nothing more than the common misfortune of those creditors, whose debtors are insolvent.
The law is consistent and just. It subjects the
land
to the payment of the wife’s debts, and the profits, to the payment of the debts of the husband. After mature deliberation, we perceive no other mode of deciding this cause without changing the nature of legal estates, and disturbing those principles by which such estates are created and protected.
We are unanimously of opinion that the verdict must be set. aside and a new trial granted.