1 Maine, 6. - 1820.
Trespass on the case. Verdict for defendant, subject to the opinion of the Court.
Mellen, C. J. - The facts in this case present some questions, respecting which judges and counselors have taken different views. They appear somewhat novel and we do not find that they have received any express judicial decision. We have examined the cause with much attention, and after some vibration of opinion have at length arrived at a result with which we are all satisfied.
The facts reported by the judge who sat in the trial of the cause led the counsel, in the argument, to the consideration of two questions; and it may be convenient for us to pursue the same course.
The first inquiry is, "What were the rights and liabilities of Babb in virtue of his acquiring a freehold estate in right of his wife in the land in question, and in consequence of his destroying or selling and disposing of the wood or timber growing on the land?"
The second inquiry, is, "What are the rights and liabilities of Perley, as assignee of said Babb and owner of his former interest in the land, in virtue of his ownership and consequent upon his destroying or selling and disposing of said wood and timber?"
With respect to the first question, it may now be observed that the land on which the trees were cut by Perley is admitted to be a wood lot, uncultivated, and in a state of nature.
When a man marries a woman who is seized in fee of lands, he thereby gains a freehold in her right. He acquires a life estate. It will be an estate for the life of the wife only, (unless he be tenant by the curtesy) in case he should survive her; or an estate for his own life, in case she should survive him; because the law presumes that the coverture will continue until the death of one of the parties. 'He does not become, by the marriage, absolute proprietor of the inheritance; but as the governor of the family, is so far the master of it, as to receive the profits of it during her life." Co. Lit. 351; 2 Bl. Com. 433; Barber v. Root, 10 Mass. 261. These profits, this usufruct of the wife's lands, the husband may dispose of according to his pleasure, without or against her consent.
For any injury to the annual profits, or for taking away the emblements, the husband may maintain an action against the wrongdoer, in his own name, without joining the wife. But for an injury to the inheritance, as for cutting down the timber growing on the wife's land, he cannot maintain such action without joining the wife; for the damages will survive to her. 3 Lev. 403; Vern. 82; Reeves' Dom. Rel. 130, 133.
These cases mark the distinction between the rights of the husband and those of the wife in relation to the lands of which they are seized in her right. If, then, the husband has a right only to the usufruct or profits of his wife's lands, the question is, what were the rights which Babb had in the land above-mentioned, and what control over it ? Could this land yield any profits, according to the legal signification of the term ? Some light may be thrown upon this point, by considering the principles of the decision in the case of Conner v. Sheppard, 15 Mass. 164. In this case the court decided that a widow could not by law be endowed of lands in a wild and uncultivated state; and the reason assigned by the court is, that 'of a lot of wild land, unconnected with a cultivated farm, there are no rents and profits." Again, they say, "In many instances the inheritance would be prejudiced without any actual advantage to the widow to whom the dower might be assigned. For according to the principles of the common-law, her estate would be forfeited, if she were to cut down any of the trees valuable as timber. It would seem too, that the mere change of the property from wilderness to arable land, or pasture, might be considered as waste." "The very clearing of the land would be actually, as well as technically, waste of the inheritance."
In the case of Sargeant et al. v. Towne, 10 Mass. 303, the court determined that a devise of wild and uncultivated land carried a fee without any words of inheritance; because a life estate would be of no use to the devisee. He would not, even if he could without committing waste, undertake the cultivation of the land devised.
It would seem from the authorities above cited, that the plaintiff, Babb, prior to the extent of Perley's execution, had no right to cut down the timber on his wife's land, or to do those acts which, in the case of a tenant for life, or years, would be waste. It is true Babb had the power to do it: and so he had the power to pull down a house, had there been one on the land; or to beat and wound his wife; - but not the right to do this; because, in the last case, he would be indictable for the offense: - and, we believe that a Court of Chancery would prohibit a husband from a wanton destruction of the wife's house or property. The wife, in all these cases, is destitute of the usual remedy by action for damages against the husband for this or any other injury to her inheritance; because a wife can in no case sue her husband. The agreement to marry, and the consequent marriage, amount to a waiver of this right of action against each other. This principle is founded on reasons of sound policy. But it does by no means follow that because the husband has the power of doing many acts prejudicial to the interest or inheritance of his wife with impunity, that he can assign and transfer this power to a third person, and give him this privilege of impunity. In this situation of parties policy does not require that this impunity should exist; and, therefore, it does not exist.
As to the second question, we would observe that whatever were the rights and liabilities of Babb as husband, those of Perley, the assignee, seem to be more defined and better explained; and if any doubt remain as to Babb's rights before the extent of Perley's execution, the cause may be decided on this second point by the application of principles well settled and understood.