#### C. F. SIPE et al. v. THOMAS HERMAN et al.

(Filed 4 December, 1912.)

1. Partition — Pleas—Sole Seizin — Ejectment—Parties.

When in adversary proceedings to partition lands resistance is made under the plea of sole seizin under a deed from the petitioners to the locus in quo, the proceedings, in legal effect, becomes an action of ejectment under tbe general issues thus raised, with the petitioners as plaintiffs and their adversaries as defendants.

2. Same — Parties—Burden of Proof — Possession—Bond.

When proceedings for partition of lands, by the plea of sole seizin, becomes in legal effect an action of ejectment, the burden of proof is on the plaintiffs to establish their title, and the defendants, in possession, are required to give bond.

3. Partition — Sole Seizin — Ejectment — Deeds and Conveyances— Title — Evidence—Judgments.

When in proceedings to partition lands the tenancy in common is not denied, except that the defendant claims sole seizin under a deed from the plaintiff to their interest in the lands, in the absence of evidence of the defendants tending to show a *108good and sufficient deed upon which they rely, judgment is properly rendered for the plaintiff.

4. Same — Married Women — Privy Examination.

Sole seizin being relied upon in an adversary proceeding to partition lands, under a deed alleged to have been made by the feme plaintiff, a tenant in common, with her husband, but without her privy examination, it is Held, that the deed of the feme plaintiff is void, and as no title passed thereunder, the defendants failed to show a superior title, and the defense must fall.

5. Deeds and Conveyances — Privy Examination — Title—Parol Evidence.

When a deed from a married woman, made without her privy examination, is relied on by defendant in his chain of title, it is incompetent on her cross-examination as a witness to contradict her testimony as to the quantity of the estate she thereby attempted to convey; and as the deed, itself was insufficient, it was incompetent to prove by the witness, by parol evidence, that she and her husband: had thereby conveyed the fee.

6. Husband and Wife — Actions—Joinder of Husband — Interpretation of Statutes.

While a wife may sue in her own right to recover her lands, her husband may join therein to assist her in the vindication of her right (Revisal, sec. 408).

7. Same — Registration.

In an action by the husband and wife to recover the lands of the latter, in which defendants claim sole seizin under a deed from them both, but without the wife’s privy examination, the recorded deed is not evidence, as it is void as to the wife, and no judgment could be rendered to dispossess her, or to the prejudice of her possession as against the husband, especially when the husband is suing in the right of the wife.

8. Estates — Husband and Wife — Tenant by the Curtesy Initiate— Constitutional Law.

The estate of the husband as tenant by the curtesy initiate is abolished by Article X, sec. 6, of the Constitution, leaving the wife’s land, a part of her separate estate, her sole and exclusive property. The incidental right of the husband in his wife’s land discussed by Walker, J.

Appeal by defendant from Adams, J., at May Term, 1912, of Catawba.

The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.

*109 W. G. Feimster for plaintiff.

S. H. Jordan and W. A. Self for defendant.

WaleieR, J.

Tbis is a proceeding for the partition of the tract of land described in the petition, especially a tract of 10% acres, among the owners, as tenants in common thereof, they having inherited the land from their ancestor, Mahala Herman, who originally was the owner thereof. Defendants Thomas and Elizabeth Herman deny the tenancy in common of plaintiffs with them and their right to partition, plead sole seizin, and specially aver that the plaintiffs, who are Cain F. Sipe and Fannie 0. Sipe, conveyed their interest, or such as they once had, to Elkanah L. Herman, who devised it by his will to defendant Elizabeth Herman, for life, with remainder to another defendant, Thomas Herman, in fee. There is no dispute as to the tenancy in common between the parties and the resultant right to partition, unless the defendants have offered testimony sufficient in law to show that plaintiffs had parted with th'eir title to Thomas and Elizabeth Herman, as above set forth. Under the old system, this would have been an action at law, there being no equitable element involved. There is no allegation or prayer for relief in the way of correction or reformation of the deed, upon which the defendants rely to support their plea of sole seizin. When the defendants denied, in their answer to the petition, that plaintiffs, claiming in the right of the feme plaintiff, Fannie C. Sipe, are tenants in common with them and plead non tenent insimul or sole seizin in themselves, the general issue in a proceeding for partition, the case in legal effect is converted into an action of ejectment, with the petitioners as plaintiffs and their adversaries as defendants, the burden being on the plaintiffs, and the defendants being required to give bond on filing their answer, which seems not to have been done in this case. Huneycutt v. Brooks, 116 N. C., 788; Vaughan v. Vincent, 88 N. C., 116; Parker v. Taylor, 133 N. C., 103; Purvis w. Wilson, 50 N. C., 22; Alexander v. Gibbon, 118 N. C., 796; Bullock v. Bullock, 131 N. C., 29. Plaintiffs proved that they and their cotenants, Thomas being "one, inherited the lands from their mother, *110Mahala Herman, and it appears that defendants Thomas and Elizabeth Herman, aj)pellants, claimed under the will of Elka-nah L. Herman, to whom the said defendants alleged the land had been conveyed by the plaintiffs, so that those two defendants claimed under the plaintiffs, and having shown no superior title and none acquired by themselves, the plaintiffs have made out a prima, facie case, which entitles them to judgment (Cox v. Ward, 107 N. C., 507), unless the position of defendant as to the alleged deed of plaintiffs to Elkanah Herman can be sustained, and we do not think it is tenable. There is certainly no valid deed from plaintiffs which passed the title to Elkanah Herman, as the land belonged to the feme plaintiff, a married woman, and the deed introduced by the defendants, purporting to be a deed signed by plaintiffs, contains no privy examination of the plaintiff Fannie C. Herman, and is, therefore, void as to her. Cook v. Pittman, 144 N. C., 530. Upon the cross-examination of Fannie C. Herman, defendant’s counsel jtro-posed to read the deed, as registered, to the witness, and the evidence was excluded. The deed was offered, as appears in the case, for the purpose of contradicting the witness, who on the same cross-examination had stated that she had only given to her father, Elkanah Herman, “a paper for a life estate,” whereas the deed showed that a fee was intended to be conveyed. But defendants could not thus establish their title to the land by parol. Cox v. Ward, 107 N. C., 507. Defendants could only show a paper title by a deed or other instrument sufficient to pass title, and could not prove orally, even by the feme plaintiff as a witness, that they had acquired the fee from her and her husband. This is too plain for argument. The evidence was, therefore, immaterial and was properly ruled out. The defendant next offered to read in evidence the registry of the same deed. The court excluded the evidence, upon objection by plaintiffs. The deed was not evidence as to the feme plaintiff (Cook v. Pittman, supra), the admitted owner of the land at the time it purported to have been executed, and her husband is only a formal party to the suit, claiming no interest therein, they having had no children, so far as appears. Defendants did not propose to prove the execution of the deed at common law, *111for the purpose of showing color and then proving adverse possession. If in this way defendants could have shown a good title as against' her husband, a merely nominal party, it would not have barred her right of entry, and would, therefore, have been of no practical advantage to them. They could get no judgment for the possession against her, or writ of possession to oust her, as she being the owner and having the present right of possession, the court would not give a judgment and a writ to the prejudice of her right. Springs v. Schenck, 99 N. C., 552. Besides, as we have indicated, her husband is suing, not for himself, but in hfer right, and is merely joined with her permissibly, under Revisal, sec. 408. This being her separate property, she could sue alone for its recovery, but is permitted to join her husband to assist her in the vindication of her right. It has -been held that Constitution, Art. X, sec. 6, abolished the estate of the husband as tenant by the curtesy initiate, the land being .her sole and exclusive property, if a part of her separate estate. Walker v. Long, 109 N. C., 510; Thompson v. Wiggins, ibid., 508; Perkins v. Brinkley, 133 N. C., 154; Hodgin v. R. R., 143 N. C., 93. It is said in Thompson v. Wiggins, supra, and Hodgin v. R. R., supra, that he has a sufficient interest in the wife’s land to constitute him technically a freeholder, and this interest is defined to be a right of joint occupancy with his wife, and he has the incidental right of ingress and egress. Thompson v. Wiggins, supra, citing Manning v. Manning, 79 N. C., 293. Speaking for myself, and not committing the Court to my view, it does not seem to me that this is a freehold estate, nor an estate at all, but a mere right of joint occupancy with the wife, which appears to be based upon their social relations or conjugal duties. Perkins v. Brinkley, supra. But Justice Bynum said, in Manning v. Manning, supra: “The plaintiff is entitled to be let into the possession of her lands, and, in a legal sense, the sole and exclusive possession.” Referring to Constitution, Art. X, sec, 6, Justice Connor said, in Perkins v. Brinkley, supra, quoting the language of C. J. Merrimon in Walker v. Long, supra: “ ‘This provision is very broad, comprehensive, and thorough in its terms, meaning, and purpose, and plainly secures to the wife the complete ownership and control *112of her property as if she were unmarried, except in the single respect of conveying it. She must convey the same with the consent of her husband. It clearly excludes the ownership of the husband as such, and sweeps away the common-law right or estate he might at one time have had as tenant by the curtesy initiate. The strong, exclusive language of the clause recited above is that the property “shall be and remain the sole and separate estate and property of such female,” the wife.’ All of our legislation and judicial construction of the Constitution and statutes have been in the same direction.”

The Court has said the husband’s right’is a freehold estate, and we will continue, therefore, so to treat it; but it is an anomalous one, and personal to the husband, and surely does not give a stranger the right to oust the husband against the consent of the wife, as the husband’s right is based upon their conjugal relation. It may be added that the husband has claimed no interest, or rather no estate, in the land, and simply joined with his wife in the deed to Elkanah Herman, according to the requirement of the statute, in order to pass her estate.

Under proper instructions from the court, the jury returned a verdict for the plaintiffs, and judgment was entered upon it. We find no error in its doing so.

No error.