At the common law a husband by the marriage acquired all of the wife’s personal things in possession” absolutely, and he acquired an estate during the coveture in her things real in possession, and was seized in her right of the fee simple; on the birth of a child born alive he became entitled as “tenant by the curtesy initiate’'’" to an estate for his life in his own right, and was seized of the reversion in right of the wife. This life estate he could sell, charge with a term for years and by force of the statute, Rev. Code, ch. 45, sec. 1, it could be sold under execution for any “just debt, duty or liability.”
In this state of the law it is clear that the husband being, in debt or subject to a duty or liability could not have surrendered his life estate as tenant by the curtesy initiate to his wife, so that it might merge in her reversion without a violation of 13th Elizabeth as a voluntary conveyance in fraud of creditors.
By Rev. Code, chap. 56, sec. 1, (Act 1848,) it is provided,. “ no real estate acquired on or since the first day of March,. 1849, by jeme coverts, who were such on the third Monday of November, 1848, shall be subject to be sold or leased by the-husband for the term of his own life or any less term of years, except by the consent of the wife, and no interest of the husband whatever in such real estate shall be subject to sale to satisfy any execution against them.”
As the marriage in this case was solemnized after the' year 1848, no question can be made as to the application of *286ithe statute, it follows that as the creditors of the husband had no right to subject this estate to the satisfaction of debts, •he was at liberty, if so minded, to surrender his estate, and let it merge in the reversion of the wife, and consequently When she sold the land to Walter Teague, the whole estate passed from her, and she with the assent of the husband, was entitled to receive the whole of the price.
Assuming this to be so, it was urged for the defendant, ¡that although the wife could take she could not hold, for as •soon as the mule, wagon and money (the price of the land) was received by her, the title vested in the husband jure ■maritk, and hence it was inferred that the defendant was under no obligation when he elected to avoid the contract •■of sale for the tract of land that Mrs. Teague wished to acquire to repay to her the articles and money which he had received of her agent, and was protected by the judgment ’to which he had submitted on the supplemental proceedings against the husband.
Piad the wife sold her land and received in payment the mule, wagon and money, without any understanding in regard to it, the jus mcirüi would have vested the title in the husband, and the inference contended for by the defendant would have followed, but there was “an understanding in regard to it,” and it was expressly agreed that as the purpose was to convert the land inherited by the wife from her father into another tract of land that would suit her better, the husband relinguished all claim to the price she rvas to get for her land, to-wit: the mule, wagon and money, and allowed it to be her separate property to be invested in the purchase of another tract of land. To this, it is objected, husband and wife are in law one person and no understanding or agreement between them has any legal effect against -creditors except marriage settlements, and marriage contracts in writing and registered. Rev. Code, chap. 87, sec. 24. The facts do not make a case of a marriage settlement or *287 marriage contract within the meaning of this statute, for we have simply an understanding, agreement or contract (call it as you please) by which the husband consents that the wife may convert one tract of land, which is in no wise subject to the claims of his creditors, into another tract of land; and in order to enable her to make the conversion he stipulates to allow her to hold as her separate property the» price of her land until it can he reinvested in another tract of land.
This is all “ plain sailing,” and it is only disturbed by the fact that the defendant (when'he elected to repudiate his verbal contract of sale instead of repaying to Mrs. Teague the price which he had received from her through her agent, "Walter Teague,) confessed (contrary to the fact according to the issue found by the jury) that he held the money and wagon as the property of the husband, and allowed the creditor, Roberts, to take judgment against the property in his hands without suggesting the fact that the fund was claimed by the wife as her separate property, of which he had full notice. This was his folly, or an attempt on his part to commit a fraud, and the consequences must fall on him.
Let it be admitted that should a.husband, married in 1852, his marital rights being fixed by tlie law as it then stood, Sutton v. Askew, 66 N. C. Rep. 172, in anticipation of the death of his wife’s father, agree to let the wife have her distributive share for her separate use, such agreement must be in writing duly registered and that as against creditors it must also be proved that the husband’s estate was competent to pay his debts. Revised Code, chap. 37, sec. 25. Ours is not that case, for here the wife had the one tract not subject to the creditors of her husband and the amount of the agreement was that the husband consented to allow the "one tract to be converted into another and to this end, that *288she might hold the price of the first tract as her separate property until it could be reinvested.
This agreement did not at all affect or concern the rights of creditors, and putting creditors out of the case, there is no farther difficulty, for in respect to the dogma, that husband and wife are one person, and the wife cannot hold personal property as her separate estate without the intervention of a trustee, the Constitution of 1668, art. 10, sec. 6, makes a radical change and allows married women to take and hold property as well in respect to marriages before as after that date — except where, as in Sutton v. Askew, sup., the husband’s right to sell his own land is to be clogged by the necessity of getting his wife’s consent, in other words paying a fine for the privilege of alienation, or where the rights of existing creditors are injuriously effected.
The objection that Teague, the husband, should have been made defendant instead of the plaintiff, as his interests are adverse to that of the wife, was fully met by the position of Mr. Armfield, that under C. C. P. it makes no material difference whether a party is plaintiff or defendant, as the Court can give affirmative relief and the judgment is a final determination of the rights of all of the parties.
There is no error.
Per Curiam. Judgment affirmed.