#### FAIRCLOTH v. BORDEN.

(Filed May 6, 1902.)

HUSBAND AND WIFE — ■,Separate Property of Wife — Rents—The; Code. Sec. 1837 — Wills.

A husband who, without objection by the wife, receives the income from her separate estate, is liable only for the receipts: for one year preceding the action brought to recover such receipts, although they, were received as agent.

AottoN by E. E. Eaircloth ag'ainst E. B. Borden, executor-of W. T. Eaircloth, heard by Judge W. 8. O’B. Robinson, at Chambers, in Goldsboro, as of November Term, 1901, of the-Superior Court of Wayne County. From a judgment for the plaintiff, the defendant appealed.

*264W. C. Monroe, for the plaintiff.

F. A. Daniels, and Allen & Dortch, for the defendant.

Furches, C. J.

The plaintiff is a daughter of the late Council Wooten, of Lenoir County, and was married to the defendant’s testator, William T. Haircloth, on the 10th day of January, 1867. Her father died intestate on the 22d of August, 1872, from whom the plaintiff inherited valuable real estate iu Onslow County, as tenant in common with her sister, Mary L. Wooten. Soon after the death of plaintiff’s father, defendant’s intestate took charge of said property, rented or leased the same, collected the rents and paid over and accounted to the said Mary L. for one-half thereof; that he finally effected a sale of said property upon time, taking, note and mortgage on said land as security for the purchase-money. That*the deeds to purchasers were executed by defendant’s testator and wife, the plaintiff E. E. Faireloth, and the said Mary L., and the mortgage to secure the same was executed to the plaintiff and her sister, the said Mary L. From time to time defendant’s testator collected and received the interest due on the note given for said lands, and finally received all the purchase-money remaining due thereon, principal and interest, and accounted for and paid over to the said Mary L. one-half thereof, but never accounted for or paid any part of the rents> interest or principal to the plaintiff. In these transactions, in making leases and in receiving rents, interest and principal money, defendant’s intestate signed his own name, adding the word “agent.” In his last will and testament he devised to the plaintiff certain real estate, in which is said “this devise is in lieu of all monies I received from her property in Onslow County, North Carolina.”

The plaintiff in due time dissented from said will and brought this action, in which she claims one-half of all the money the intestate received from the Onslow property, *265whether it was received as principal, interest, or rents. The defendant answers and denies her right to recover the same, especially that part his intestate received as rents and interest, and specially plead and relied on Section 1837 of The Code as a bar to her right-of action thereon.

The case was, by consent, referred to Geo. Rountree, Esq., to take and state an account of the matters involved in the controversy, which he did, and reported that defendant’s testator had received as rents $8,568.24; as principal on purchase of said land, $20,568.15 ; as interest on purchase-money, $7,833.16 — making in the aggregate of $36,969.55, of which sum the plaintiff and Mary L. Oliver (nee Wooten) were each entitled to one-half; but the defendant’s testator had received said money without objection from plaintiff. Nrom the facts so found, he concluded, as matters of law, that the plaintiff was not entitled to recover any part of the $8,568.24 received as rents, nor any part of the $7,833.16 received as interest, but was entitled to recover half of $20,568.15 received as principal money, this representing the corpus of the estate inherited by the plaintiff from her father.

But plaintiff not being satisfied with referee’s findings of fact, nor his conclusions of law, excepted to both, and upon a bearing upon report and exceptions before Robinson, J., he found, instead of the sixth finding of the referee, as follows: “Instead of the finding of the referee, it is found as a fact that the defendant’s testator received said sum of money as the agent of the plaintiff and her sister. It is further found, at the request of the defendant, that there was no evidence of any express agreement oh the part of defendant’s testator, to account for any part of the same, except such as was embraced in the fact that he received it as agent.”

If it were necessary to account for defendant’s testator signing himself as agent, it might be said that he was the agent in fact of his sister-in-law, Mary L., and it was alto*266gether proper that be should so sign his name, for that reason ; but we do not think it necessary to do -¿his, as we think by law he was the legal agent of his wife, the plaintiff, to receive these rents and the interest on the purchaser-money unless she objected to his doing so.

These rents and interest belonged to the plaintiff under the-Constitution of the State and Section 1837 of The Code, which is as follows: “The savings from- the income of the separate estate of the wife are her separate property. But no husband who during the coverture has received, without objection from his wife, the income of her separate estate, shall be liable to account for such receipt for any greater time-than the year nest preceding the date of a summons issuing against him in an action for such income, or nest preceding her death.” This section anticipates the receipt of such income by the husband. It is not his, but the statute anticipates that he will receive it — not as his, because it is not his, but as the agent of his wife, in fact or-ín contemplation- of law. In Baker v. Jordan, 73 N. C., 145, the Court, in speaking of the relations of husband, and wife, under the Constitution of 1868 and the statutes enacted since its adoption, say the wife’s property is no- longer the husband’s; but as to her property, “he is bound to account for profits received out of her estate if called as such overseer of baÁliff * * * to account. and pay over within one year.” The words overseer and agent are used as- convertible-terms in Section 161 of Wells’ Separate Property of Married Women. They are so used, we think, in Section 1837 of The Code, and we do not think it made any difference whether defendant’s testator received these rents and interest by plaintiff’s express direction or by that implied by the statute; for if he received them either way, it did not make them his money. They still'belonged to the plaintiff, and she might have recovered them if she had brought suit in time.' But-*267Section 1837 is a statutory bar to ber recovery, if ber bus-band received them without her objection, and sbe did not bring suit in one year for tbe same. Tbis is too plain to admit of argument, and is sustained by wbat is said in Battle v. Mayo, 102 N. C., 439, and George v. High, 85 N. C., 103, cases cited by plaintiff. But we do not understand plaintiff to dispute tbis being tbe law where tbe money is received without objection; but sbe contends that tbe fact that defendant’s intestate received tbis money as agent shows that sbe objected to bis receiving it at all. Tbis is wbat it must prove to enable ber to recover; and in our opinion it does not prove or tend to prove tbis, but if it proves anything, it proves that sbe was willing for him to' receive it, and did not object to his doing so. As we have said, Battle v. Mayo, 102 N. C., 413, sustains tbe views of tbe defendant, while it sustained an action on several notes given by tbe husband for tbe incomes of tbe wife’s property. Tbis is sound law; tbe incomes were tbe wife’s, and furnished a good consideration for tbe notes, and 'that action was to enforce tbe collection of tbe notes. Tbe question as to' whether sbe objected to ber busband’si receiving tbe money or not was in no way involved, and is not authority for tbe plaintiff in tbis case. As we do> not think it makes any difference bow defendant’s intestate received tbis money, tbe plaintiff can not recover it (that is, rents and interest), unless sbe objected to his receiving it, and as we are of opinion that the fact that be signed bis name as "agent” is no evidence that sbe objected to bis receiving it, and as it is found as a fact there was no other evidence that sbe objected, we do not think sbe can recover anything but tbe principal and such interest as has accrued since the commencement of this action. There is error, and tbe report of tbe referee should have been confirmed.

Error.