#### JOHN DOZIER vs. WILLIAM N. GREGORY.

The husband of a tenant in dower is not liable for mere permissive waste-, after tlie death of his wife, and the surrender of his possession.

The husband of a tenant in dower, who removes a house from tlie premises, is liable in an action in the nature of-waste, even after the death of his wife, though he may have built the house liimsolf.

ACTION on the case, in the nature of waste, tried before his Honor Judge Saunders, at the Camden Superior Court, Spring Term, 1858.

The plaintiff showed title to the premises by descent from Malachi Dozier. Dower had been assigned to the widow 0‡ his ancestor by metes and bounds, including the building in relation to which this action was brought. The widow of Malachi Dozier, after this assignment, intermarried with the defendant, who took possession of the premises; and continued to occupy them until'the death of his wife, which occurred-just before the bringing of this suit. The defendant, during his occupaney, removed a small house used as a poultry house, worth about five dollars, which the defendant had placed upon the premises after he came info possession. There was a small house on 'the land used for the same purpose when the defendant entered.

There was also on the premises a dwelling house, built in 1800, which the defendant occupied during the life of his wife. This had been thoroughly repaired in 1825, except that the shed could not he prevented from leaking. Upon this house the defendant'did no repairing during his- occur *101pancy, and it was in a worse condition when he gave it up than when he took possession. Many of the window sills, both above and below, were decayed; the floors also were decayed ; one window was suffered to remain without glass for some time before, and up to the time of surrendering the possession, through which the rain drove in and contributed to the rotting of the floors, though this was chiefly caused by the leaking of the shed roof. This building would have been much more valuable if it had been repaired in proper time. There were two old kitchens on the premises, which were out of repair at the death of Dozier, upon neither of which was any repairing done by defendant, and they continued from decay to decline in value until he gave up his possession. Ono of these had become entirely useless, and the roof connecting the other with the dwelling house had been blown down in a storm. The decay in these kitchens had been general, and was produced by natural causes.— There were also on the premisos stables and a quarter kitchen, which were in abetter state of repair when the defendant surrendered possession thaii when he took it.

The defendant was married to the widow in 1837, and had possession up to a short period before the bringing of this action. Malaohi Dozier died in 1835.

1st. It was contended by the defendant that no action would lie against him,_ after the death of his wife, for waste done in her lifetime.

2d. That he was not liable for permissive waste.

3d. That ho was not liable for waste in removing the house which he had put upon the premises.

The Court instructed the Jury that, notwithstanding the last two objections raised by the defendant, the plaintiff was entitled to recover. The first question raised by the counsel he reserved.

The Jury rendered a verdict for the plaintiff.

Upon consideration of the question reserved, his Honor Judge SaüNDEIís gave it as his opinion that the plaintiff *102could not recover. The verdict was set aside, and a non-suit entered. Appeal by the plaintiff.

Poole, Heath and Hines for the plaintiff.

Smith for the defendant.

Battle, J.

An interesting question has been discussed by the English elementary writers, whether a tenant in dower, or other tenant for life, is liable for mere permissive waste. The argument in favor of the liability is well sum-ed up by Mr. Bell, in his work on the law of the property of Husband and Wife, page 304, as follows: “Whether a dowress is liable for waste permitted by her, has been doubted. A suggestion in one of Hargrave’s notes to Co. Litt. 57 a. n. 1, whether tenant in dower was liable only for active, and not for permissive waste, gave rise to a discussion in Roper, vol. 1, p. 421, to show that she is liable for both ; and of this there seems so little room for doubt, as hardly to justify the uncertain state in which that .author leaves the question. Previous to the statute of Crloueester, 6 Ed. I, ch. 5, a prohibition of Avaste lay against a tenant in doAver or by the curtesy, Avhile it did not lie against tenant for life, or years, or at will, by agreement of party. The distinction inthetAvo cases arose from this: that, in the latter, the tenant comes in by the act of the lessor, who might stipulate beforehand'that no waste should be done; whereas, in the former, the tenant comes in by act of laAY, and without the power of him in the reversion to make any such stipulation. Co. Litt. 546. In the books where this-is laid doAvn, no distinction is made between active and permissive waste. Then comes the statute of Marlbridge, 52 Hen. 3d, ch. 23, which forbade fermors to make waste during their terms, followed by the statute of G-loueester, which gave a writ of waste against tenant for life or years, as well as tenant in dower, still Ayithout making any dis-*103ti-nction between the two kinds of waste, and omitting mention of, tenants at will. , Littleton, sec. 71, says that tenant at will is not bound to “sustain or'repair the house, as tenant for years is tyed and in in Co. Litt. 53 a., where the liabilities of tenant by the curtesy j in dower and for life and years, are treated of, instances are given of permissive waste. Golee, therefore, puts all these tenants in the same category; and Rolle, 816, pl. 36, 37, says “ that an action would lie against a lessee for permissive waste. As, therefore, the tenant in dower has always been liable at common law for permissive waste, even while tenants' for life or for years were not liable until the statute of Grlouaester made them so, and as these tenants unquestionably are liable, ever since the statute, for permissive waste, there seems no reason to doubt that the situation of tenant in dower is not better in this respect than that of these tenants; more especially as there is the same principle why she should be liable for permissive as for actual waste. Since the heir cannot enter «pon her to make repairs, he may suffer as much damage -by her permissive as he would by her actual waste.”

The reasons for the contrary opinion are forcibly stated by Mr. Ghitty, in his General Practice, page 386.— “ Tenants for life, unless expressly dispunishable for waste, are liable for any actual or wilful waste; as cutting trees, otherwise than fer repairs, or altering -buildings or land, pr destroying hedge-rows. The statute of Marlbridge and the statute of Grlouaester are the only statutes relating to waste. The first enacts, sec. 2, “also farmors, during their terms, shall not make waste, sale nor exile of house, woods and men, nor of anything belonging to the tenements that they have to ferm, &c.; which thing, if they do, and thereof be iconvict, they shall yield full damage^ and shall be punished ¡by amerciament grievously.” The statute of Gloucester 'pnacts that “ a man shall have a writ of waste m the Chancery against him, that holdeth by law of England (i. e. ten*104ant by curtesy,) or otherwise, for term of life or for term of years, or a woman in dower, and he which shall be at-tainted of waste, shall lose the thing which he hath wasted, and moreover shall recompense thrice so much as the waste shall be taxed at.” It is submitted that both these acts only apply to wilful or voluntary waste, and do not extend to more permissive waste. Mr. Sergeant Williams, in his valuable edition of Saunders — 1 Saund. Rep. 323, b. n. 7; 2 Saund. 259. n. 11 — misstates this enactment, as if it expressly gave an action of waste, or in case against any lessee for life or years, guilty of permissive waste, as if he permit an house to bo out of repair, unless it was ruinous at the time of the lease ; (although tho act speaks only of forfeiture of the thing that he toasted, with treble damages;) and he refers to elementary works ¡«, proving that the statute extends to permissive as well as voluntary waste, and he insists that tho statute extends to tenants from year to year, or even half a year; but the subsequent editors, in their learned and accurate notes, have questioned the latter opinion, at least as regards tenant from year to year, and and also as regards lessee for years, under a lease not containing any covenant to repair. 1 Saund. Rep. 828, b. note (x,) and 2 Saund. 252, a. note (b.) And it seems questionable whether the statute of Gloucester extends to any case of mere permissive waste, and, indeed, whether a tenant for life is liable to any penalty, forfeiture or action for merely neglecting to repair, unless he be under express directions or agreement to do so. Hearne v. Benbow, 4 Taun. 764; Jones v. Hill, 7 Taun. 392; 2 Eng. C. L. Rep. 149.

It is unnecessary for us to decide this disputed question ; but as the material parts of the statutes of Marlbridge and Gloucester are re-enacted in this State, (see Rev. Stat. ch. 119, sec. 1 & 3,) and the action of waste has been held to be in force here, (Ballentine v. Payner, 2 Hay. 110, Bright v. Wilson, Conf. Rep. 24, and Browne v. Blick, 3 Mur. *105 511,) we have thought it would not be altogether useless to call the attention of the profession to the subject.

The action- of waste, which was founded upon privity of estate, and could only be brought ly the owner of the inheritance against his immediate tenant for life or years, is now very seldom used, and has given way to a more easy and general remedy, to wit, an action" on the case in the nature of waste. Williams v. Lanier, Busb. 30; 1 Cruise Dig. 124 ; 2 Saund. Rep. 252, note 7. The present is an action of the latter kind, in which the plaintiff declares in two counts, the first for permissive, and the second for voluntary waste, against the husband- of a tenant in dower after the death of his wife. We are clearly of opinion that the first count cannot be sustained. The liability of the husband (if liable at all for permissive waste,) was incurred by his marriage, and ccasod with it. It is well known that his liability for his wife’s debts cannot be enforced against him after her death, except as administrator, for assets which he received in that capacity. So for her devastavit as executrix or administratrix, whether committed before or during coverture, he is not liable at law after the coverture coasos; though the rule in some cases is different in Equity, where the devastavit is committed during coverture. See Bell on Prop, of H. & W., 46 & 47, and the cases there cited, (67 Law Lib.) There is no principio upon which the case of permissive waste can be distinguished from'this. In Turner v. Buck, 22 Vin. Abr. 523, Lord Cowper sáys, “ that, without some particular circumstance, thcr'e is no remedy at Law or Equity for permissive waste, after the death of the particular tenantand we say, a fortiori, not against the husband of a particular tenant after her death.

The question remains, whether the action can be sustained upon the count for voluntary waste: and we are decidedly of opinion that it can. It is true that it is said in Clinton’s case, 5 Coke’s Rep. 85, “ that if a woman, tenant for life, *106takes ¡husband who .commits waste, and the wife dios, the husband shall not be punished for this waste.” But that was an action of waste on the statute of Gloucester, and the reason given for the decision was, “ that the husband had not any estate for life in the land, but the wife had the estate for life, and the husband had it only in her right, and .so she is not within the said act.” " The action on the case in the nature of waste differs, in several particulars, from the action of waste. Thus it may be brought by the person in remain-dor,-or reversion for life or years, as well as in fee ; and it may bo brought by the owner of the inheritance against a stranger who commits a trespass upon the land, during the term of the particular tenant. 2 Saund. Rep. 252, n 7 — Cru. Dig. 124 — Williams v. Lanier, Busb. 30. In the present .case, the -heir might have sued the tenant in dower for voluntary waste ; so he might have sued a stranger for a trespass, during her life; and it is difficult to conceive of ¡a reason which can put the husband trespasser upon a better footing than a stranger. The removal of a .small poultry" house, though erected by the husband, was undoubtedly a .trespass, and was his own act, for which he alone was re-.■sponsiblo, without reference to his occupancy jure uxoria,

■ The result is, that as, in our opinion, the action may be sustained upon the second count for voluntary waste, the judgment of non-suit must be set aside, and a venire de novo .granted.

Judgment reversed.