Porter v. Bowers

Bartol, C. J., delivered the opinion of the Court. This is an action of trespass q. c. f brought by the appellant, a married woman, by her husband as next friend, against the appellee. It appeared in proof that the land on which the alleged trespass had been committed, was given to the appellant by her father in 1840. She being at that time the wife of Joshua S. Porter ; that she and her husband have ever since lived together, as man and wife, and have children born to them alive ; that they have continued ever since in the possession and occupancy of the land.

The Circuit Court instructed the jury upon this state of facts “ that the land in question is not the separate property of the plaintiff, and that she is not entitled to maintain this action by her next friend, and that under the pleading and all the evidence in the cause the plaintiff is not entitled to recover.” There can be no doubt of the correctness of this instruction. The title to the land in fee, having been acquired by Mrs. Porter during her coverture, and before the Act of 1841, ch. 161, her husband became entitled jure uxoris to the possession thereof, and the pernancy of profits during ²¹⁶ their joint lives, and as tenant by the curtesy upon her death if he should survive her. This title of his