In Cecil v. Smith, 81 N. C., 285, Justice Dillard, for the Court, said: “ The husband has not, under the present Constitution and laws, nor has he had since the Act of 1848 (passed March 1st, 1849), any interest in the real estate of his wife, which he could sell or lease for life, or any less term of years, except by deed joined by the wife and with her privy examination, and as to the sale of any supposed interest of the husband in the lands of his wife by execution against him, it was declared by said statute, which is still in force and brought forward in Battle’s Revisal (ch. *51870, § 33), that the same should be null and void in law and equity.” The same statute is still in force in totidum verbis except the words “in law and equity” at the end of the section,-which are mere surplusage. The Code, § 1840; Walton v. Parish, 95 N. C., 259; Taylor v. Apple, 90 N. C., 343; Young v. Greenlee, 82 N. C., 346; Manning v. Manning, 79 N. C., 293.
In MeCaskill v. McCormac, 99 N. C., 548, the Court, speaking of the right of the husband or tenant by curtesy, after the wife’s death, say: “But we think it is settled by abundant authority that the purpose of the act was-to protect the wife, leaving the right of the husband, and of course his liabilities, unimpaired and unrestricted after her death.”
Whatever may be the rights of the husband in the wife’s land after she may die intestate, the authorities concur in the view that the husband holds no estate during the life of the wife as tenant by the curtesy initiate which is subject to sale under execution, and which he can assert against the wife. He has the right of ingress and egress and marital occupancy; but can assume no dominion over her land or rents except as her properly constituted agent. Constitution, Art. 10; Manning v. Manning, supra, and Ibid., 300.
The husbands of the two femes covert under whom plaintiff claims had no estate in the land in controversy so as to start the statute running against them. Thompson v. Wiggins and Walker v. Long, at this term. The wives having been married to their husbands in 1867, though issue had been born to both, were at all times the present owners of whatever estate descended to them from their father before marriage, and, as they were both infants when the father died and the disability of coverture supervened and has continued to the present time, the statute has never been put in motion against either of them, unless their ancestor Patton was alive when Gaither took possession in 1854. The Court instructed the jury that the burden was on the plaintiff to satisfy them that Samuel Patton died before theoccu-*519pation by Gaither, Which began in 1854 under a deed, the loss of which was shown, and continued till 1861.
The plaintiff, having offered deeds from both of the heirs of Samuel Patton, in which their husbands join, is, therefore, the owner of all of the present and prospective interest of his grantors.
Our statutes (§§ 474, 475 and 267 (5) of The Code) provides that a plaintiff who prevails in an action involving the title or right to the possession of land, may recover also in the same action the clear annual value of the land and damages for waste or injury to the premises up to the time of trial, but the defendant is not liable for rents accruing or waste or other injury committed for any period previous to three years before suit was brought, except when the defendant prefers a claim for improvements. Sherrill v. Connor, 107 N. C., 630; Reed v. Exum, 84 N. C., 430; Whissenhunt v. Jones, 78 N. C., 361. We think that there was error in the instruction given to the jury that they might allow as damages the fair rental value, and for any spoil as far back as January 12th, 1882, although the summons was not issued till 1889. But it is not necessary or proper that the verdict should be disturbed as to the other issues. The defendant has not showm that the jury were misled to his prejudice in passing upon them. A new trial will be awarded therefore, only as to the issue involving the damages.
New trial as to isue of damages.