#### SPRUILL v. BRANNING MANUFACTURING COMPANY.

(Filed March 4, 1902.)

1. TRESPASS — Husband and Wife — Administrator—Estates—Per tout et non per my.

Where a husband and wife own land jointly, the administrator of the husband can not bring an action for a trespass committed prior to the death of the husband.

2. TRESPASS — Husband and ~Wife — Estates—Per tout et non per my.

Where husband and wife own land jointly, the wife may bring an action for trespass committed prior to death of husband.

3. LIMITATIONS OF ACTIONS — Married Woman — The Code, Bee. m.

Where husband and wife own land jointly, the statute of limitation against an action for trespass begins to run as to the wife at the death of the husband.

AotioN by C. W. Spruill, as administrator of the estate of T. IT. Wilson, and Alice Wilson, against the Branning Manufacturing Company, heard by Judge O. PI. Allen and a jury, at November Term, 1901, of the Superior Court of Bbetie County. From a judgment for Alice Wilson, the defendant appealed.

B. B. Winborne, and St. Leon Scull, for the plaintiffs.

B. B. Peebles, and Pruden & Pruden, for the defendant.

Furches, C. J.

In 1895, and before that time, Thaddeus Wilson and Alice Wilson, being husband and wife, were the owners of a tract of land in Bertie County, conveyed to them by deed. In the year 1895, the defendant committed a trespass on said land by entering upon the same, cutting and removing timber therefrom, and otherwise damaging said land. On the 12th of January, 1896, Thaddeus Wilson died intestate, and on the 16th of November, 1896, C. W. *43Spruill qualified as bis administrator. On tbe 7 th of February, 1898, said Spruill, as administrator, and tbe widow, Alice Wilson, coanmenced tbis action to recover damages for said trespass.

Tbe defendant denied committing tbe trespass, denied plaintiffs’ right to maintain tbis action, and pleaded tbe statute of limitation. His Honor beld that tbe plaintiff Spruill, as administrator of Wilson, bad no cause of action against tbe defendant, and submitted tbe following issues to tbe jury as to plaintiff Alice’s right to recover:

1. Were Thaddeus Wilson and bis wife Alice tbe owners of tbe 26-acre tract of land described in tbe pleadings? Ans: “Yes.”

2. If so, did tbe defendant trespass upon tbe same as iá alleged ? Ans.: “Yes.”

3. If so, what damages were done tbe same thereby ? Ans.: “$80.”

4. Is tbe cause of action therefor barred by tbe statute of limitation as to Alice Wilson? Ans.: “No.”

Hpon these issues, judgment was given to tbe plaintiff Alice, and tbe defendant excepted and appealed.

Tbe defendant tendered other issues that were not submitted by tbe Court, and defendant excepted. But tbis exception can not be sustained.

We are of tbe opinion that bis Honor was correct in bold-ing that tbe plaintiff Spruill, as administrator of Thaddeus Wilson, bad no right of action. And it seems to be settled by tbis Court that tbe plaintiff Alice bad, unless she is barred by tbe statute of limitation. She and her husband Thaddeus Wilson beld tbis land by entirety — not as joint tenants oi tenants in common. She and her husband were seized per tout, and not per my — each being seized of tbe whole, and not of a part; therefore, upon tbe death of her husband, she remained tbe owner of tbe land. She took nb new es*44tate. If she had, she would not have been entitled to recover damages for a trespass committed before her acquisition of said new estate. But this question is so elaborately and s,o ably discussed by the late Chief Justice in Gray v. Bailey, 117 N. C., 439, that it seems to be only necessary to refer to that case and the authorities cited.

Nor does it seem to us that the Court committed error in refusing to hold and charge that the plaintiff Alice’s right of action was barred by the statute of limitation. If the statute commenced to run as to her from the date of the trespass, more than three years had elapsed; and she would be barred. But if it only ran as against her from the death of her husband, three years had not elapsed; and she is not barred. And it seems to be settled that it did not run as to her until the death of her husband. The Code, Sec. 163; Johnson v. Edwards, 109 N. C., 466, 26 Am. St. Rep., 580; Bruce v. Nicholson, 109 N. C., 209, 26 Am. St. Rep., 562.

We therefore find no error in the judgment, and it is

Affirmed.