dissenting: Tbe question here presented, whether a divorce a mensa et thoro constitutes busband and wife tenants in common of land held in entirety, bas never hitherto been decided in this Court.
When an estate is conveyed to two or more persons under our law it makes them tenants in common. There is no exception to this by any statute; but in England, formerly (though not now) an exception was made, not by any statute, but by tbe opinion of judges who held that, as tbe law then stood, tbe property rights of tbe wife being suspended during coverture, that if a conveyance or devise was made to two persons who happened to be busband and wife, tbe busband should have the whole of tbe estate during his lifetime and at bis death it should go to tbe survivor. Thus by judicial enactment was created tbe “estate by entireties.”
*586By our Constitution adopted in 1868 — now forty-nine years ago— the former conception of the extinction of the wife’s right of property during the marriage was utterly abolished and it was provided Article X, section 6, that the property of the wife, either at marriage or thereafter acquired, should be and remain her sole and separate property as if she were unmarried. It therefore follows that, if the Constitution governs, a conveyance or devise to a man and his wife stands as if the wife was still single, and they-hold as tenants in common.
When the same abolition of the common law as to property rights of husband and wife was enacted elsewhere, it was held in England, Ireland, Canada, and twenty-eight States of this Union that the result was to make husband and wife, when grantees or devisees of the same property, tenants in common. 2 Lewis Bl. Com., 182,. note 18; 30 L. R. A., 314-319; 21 Cyc., 1201, 1202. It should have been so held in North Carolina also, but the judges held to the contrary, when the question was first presented here, and that opinion has been followed ever since, though more than once the Court has suggested to the Legislature the propriety of abolishing entireties.
This question, however, is not raised by this appeal. But if it had been held otherwise, no judge or court is bound by an erroneous precedent, but should correct it. In McKinnon v. Caulk, 167 N. C., 411, the question was presented as to the effect of an absolute divorce, and it was held that in such case the husband and wife were remitted to hold the property as tenants in common. This was in accordance with the holding in all other States except two.
The question now presented is as to the effect of a divorce a mensa et thoro. This has not been decidéd in this State, and we should decide the question upon the. language of the Constitution and upon the reason of the thing in analogy to McKinnon v. Caulk, supra. It is unrighteous for the husband to receive the rents and profits from the wife’s half of the land after such divorce.
Conceding that a conveyance or devise to two persons, who happen to be husband and wife, can be construed, therefore, contrary to its language, and that the wife cannot have the constitutional right to hold her property therein as if “unmarried,” the only plausible reason is that as the husband is charged with the wife’s support, therefore during their joint lives the income from such property should go to the husband to be applied to their joint support. Any argument that is based upon “being one flesh” is purely fanciful, for it is untrue in fact, and, since our Constitution of 1868, untrue in law. Therefore, when there is a divorce from bed and board the husband being discharged from the support of his wife as fully as in a divorce a vinculo (except as to the alimony, which when allowed should be paid out of the hus*587band’s own property), it follows tbat tbe wife is entitled to ber balf of the income from the joint property during their joint lives, and to partition. There is no precedent against this, for the matter is absolutely res nova, in this State at least, and we should follow the Constitution and the reason of the thing.
It has been stated by a most distinguished judge and law writer that in North Carolina, notwithstanding the provision in our Constitution of 1868 which confers equality of property rights upon married women, the Supreme Court of this State has followed in every decision the former judicially created doctrine of the inferiority of the wife and the submergence of her existence in that of the husband except and until there has been some act of the Legislature in conformity with the spirit and letter of the Constitution. A long list of authorities bearing-out this statement can be easily appended. These decisions have not always been against the individual woman who was litigant, because the protection of being non sui juris (which is another word for being incompetent and incapable) has sometimes been claimed for her by her lawyer; but the decisions have usually, if not always, been against the claim, by whichever side and whenever set up, that the woman is by the Constitution held competent and has the same property rights as if she had remained unmarried. We have held that a man has a right to slander the good fame of his wife, though he is indictable for doing the same as to any other woman, S. v. Edens, 95 N. C., 693. ¥e have held that the earnings of the wife by her needle belong to her husband, Syme v. Riddle, 88 N. C., 463, notwithstanding the language of the Constitution which guarantees that all property “acquired in any manner whatever, after marriage as well as before,” shall remain her sole property, and even that damages for loss of her limb and physical and mental suffering belong to her husband, and cannot be recovered by her, Price v. Electric Co., 160 N. C., 450., In these respects, and in some others, statutes have been passed since requiring conformity to the Constitution, but statutes have not yet cured all discriminations against the wife as fully as the Constitution has done, and especially it has not yet done so as to the judge-created “estate by entireties.” But no decision has until now extended that estate to a case like this, where there has been a divorce from bed and board.
The ruling by which a devise or conveyance of property jointly to husband and wife becomes the sole property of the husband during his life is without any authority in any statute here or in England, but was created solely by men judges in the barbarous days in England, and was the expression by them of the sentiment which still prevails among savages, based upon their idea of the superiority of men and the incompetence and incapacity of women, and pictured the state of such *588society where men are loafers and women are drudges doing all the work, whose results are appropriated by the men. The state of the English law as to wives, which survived to his day and far later, from those ruder times when the judges (not Parliament) created the discrimina-tions against them, is accurately expressed by Shakespeare, a good lawyer (whether his works were written by Lord Bacon or not), when he made Petruchio say of his wife:
“I will be master of what is mine own!
She is my goods, my chattels; she is my house,
My household-stuff, my field, my barn,
My horse, my ox, my ass — my anything.”
Of a piece with this -was the doctrine, also judge-made, for there was never statute for it, that if a man beat his wife “with a switch no larger than his thumb” the court would not punish him. The last of these was still held law in this State (S. v. Black, 60 N. C., 262; S. v. Rhodes, 61 N. C., 455) till abolished, after the Constitution of 1868, by the decision in S. v. Oliver, 70 N. C., 60 (in 1874), long after this was done in England, while the doctrine as to the annihilation of the property rights of the wife by her marriage was abolished in England and everywhere else, and as clearly by our Constitution in 1868 as language could make it. Walker v. Long, 109 N. C., 510.
The statement of Adam (not of God), 2 Gen., 24, “that husband and wife should be one flesh” was figurative and cannot deny property rights to. married women in North Carolina contrary to our Constitution under the conditions of society which prevail since Adam’s expulsion from Paradise. Adam in a moment of exaltation made a statement of his high intentions of equality with his wife in all things. As a literal fact, they were not made one flesh, and could not he. Even as to union of interests, which was meant, decrees for divorce have been signed by every Superior Court" judge in North Carolina.
Indeed, the expression as quoted in Mark (ch. x, v. 8), “They twain shall be one flesh,” and to the same purport in Matthew (ch. xix, v. 5), and “They two shall be one flesh”; Eph. (ch. v. verse 31, which is explained in verse 32 to apply to the church), show the equality and not the submergence of the wife in the husband as the one being resulting from the union. It would be as logical and as just to say that the wife was the one, and, therefore, that when property is conveyed or devised to her husband and herself, that she should have all the rents and profits during her lifetime, and that on the husband’s death she should have the whole in fee simple, as the contrary ruling by men judges that the husband should have all the proceeds of the joint porperty during his lifetime. Our property rights are fixed by our Constitution and laws, and not by the law of Moses.
*589Tbe obscure and utterly unknown judge wbo in tbe remote past evolved tbe doctrine of entireties out of bis own consciousness doubtless based tbe idea upon tbe above citations; but neither be nor the Mosaic Law as to property rights can control tbe provision of our own Constitution which confers upon married women, expressly, tbe same rights “as if unmarried.” It would be as logical to bold that tbe modern enlightened laws of war should be controlled by tbe requirements of tbe old Scriptures that tbe captives taken in war should be utterly slain — men, women, and children, 1 Sam., ch. 15, or to follow other reqriirements which a sect in England and Scotland once advocated and even in admiration named some of their children “Hew-Agag-in-PiecesOr, the statement, “Thou shalt suffer no witch to live,” which Blackstone, as late as 1769, said (4 Com., 60) to deny the existence of whom is “to flatly contradict the revealed Word of God in various passages, both in the New and Old Testaments,” and that the offense is “punishable with death by burning.”
A landowner in having his land surveyed found that the distance called for between two points in his deed was greater than by a straight line between those two points, and proposed “to bend out” into his neighbor’s field in orjler to “get his poleage.” The neighbor promptly replied: “Why don’t you bend in to get your poleage?” If it is absolutely necessary when there is a conveyance or a devise to a man and his wife of property jointly that one shall have the whole of it, why should it not be the wife instead of the husband? There is as much reason for one as for the other.
When the Constitution of 1868 provided that upon marriage a woman should retain all her property which she then had or might thereafter by any means acquire, there remained no longer any reason, to deprive the wife of her half interest in realty conveyed or devised to her and her husband jointly by confiscating it all for the benefit of the husband. This was at once so held in England, Ireland, Canada, and twenty-eight States above cited.
In Mial v. Ellington, 134 N. C., 131, this Court reversed the ruling in Hoke v. Henderson, 15 N. C., 1, though that had been made by a very strong Court (Ruffin, Daniel, and Gaston) and had been in force for nearly three-quarters of a century and had been cited with approval more than sixty times. If notwithstanding the express provision of the Constitution, a similar act of justice cannot be rendered to wives; s'till there can be no reason why the Constitution should be further disregarded by extending for the first time such ruling to cases where there is a divorce from bed and board.
At a time when women are no longer disposed to submit to enthroned wrong and to suffer in silence as their mothers did; when all five political *590parties have pledged themselves to confer full suffrage upon them, and in nineteen States women already have the right to vote for President and in twenty other States suffrage in lesser matters, and the President and Cabinet and the political leaders in all parties are pledged to full and equal suffrage; when the irresistible tide of long delayed justice is sweeping over all other countries as well as in ours, it is surely not an auspicious hour by judicial construction to extend in this State the discrimination against women to new fields where it has not heretofore obtained and further restrict the constitutional guarantee of their personal or property rights.
The estate by entireties is further unconstitutional because it exempts from claims of creditors property not included in the homestead allotment.
Note. — The utter absence of rights in the wife at common law, as against the husband correctly quoted by Petruchio, cannot be justified against all wives because his wife was a shrew. Even those who illogically condemn women to inferiority and indignities as punishment inherited from Eve (for men as well as women are descended from her) will not support that view. In this case the aggregate of the wife’s rents and profits of which she was deprived may well have exceeded what came to her at last by the chance of her being the longest liver. Moreover, all wives do not survive their husbands.