#### W. D. COLWELL et ux. v. MARTIN O’BRIEN et ux.

(Filed 22 January, 1930.)

Specific performance B a — Tenancy by the curtesy initiate is sufficient interest in land to support specific performance against husband.

Where in a contract by a husband and wife to convey lands of the wife the wife’s privy examination is not taken, the interest of the husband as tenant by the curtesy initiate is sufficient to support an action for specific performance against him so far as his interest is concerned.

Petition by defendants to rehear this case, reported in 196 N. C., 508, 146 S. E., 142.

Bellamy & Bellamy, John A. Stevens a,nd I. 0. Wright for plaintiffs.

Bryan & Campbell for defendants.

*229Stacy, 0. J.

Has a tenant by tbe curtesy initiate sufficient interest in land to support an action for specific performance, so far as bis interest is concerned, under a contract of sale signed by said tenant and bis wife, where tbe wife’s privy examination is not taken? ¥e tbink so.

While it is true that a, husband as tenant by tbe curtesy initiate, under our present Constitution and laws, has no present estate in bis wife’s land which be may sell or lease, without bis wife’s joinder, or which may be taken under execution against him (Cecil v. Smith, 81 N. C., 285), nevertheless, after birth of issue alive, curtesy initiate is still regarded with us as a valuable interest which may ripen into an estate of freehold, or curtesy consummate as at common law. Jackson v. Beard, 162 N. C., 105, 78 S. E., 6; Jones v. Coffey, 109 N. C., 515, 14 S. E., 84; Walker v. Long, 109 N. C., 510, 14 S. E., 299. Indeed, in Thompson v. Wiggins, 109 N. C., 508, 14 S. E., 301, it was said that “He has, by the curtesy initiate, a freehold interest, but not an estate, in the property.”

But without regard to the precise interest which a tenant by the curtesy initiate may have, the question presently presented is whether the contract of sale, set out in 196 N. C., 508, is valid and capable of being specifically enforced so far as the interest of the male defendant is concerned. We see no valid reason for disturbing the original opinion heretofore filed in the case.

Petition dismissed.