majority"> Fuhches, J.:

The plaintiff, who was a widow with one daughter 14 or 15 years old, married Charles Cunningham sometime before 1888, and, after the marriage, purchased a vacant lot in the town of Brevard from Duckworth.

This purchase was probably by parol, as no bond or written contract seems to be mentioned.

After the marriage of Charles and the plaintiff, she and her daughter worked at a hotel in Asheville, for which the plaintiff received the price of their wages. With the money thus acquired, and by other monies and by property acquired by the plaintiff, she paid Duckworth for the lot, upon which there have been placed some improvements. These improvements seem to have been paid for by the labor of the plaintiff and that of her husband Charles.

There was evidence tending to show that the plaintiff handed Charles the money she and her daughter had earned in Asheville, telling him at the time to take it to Duckworth to finish paying him for the land, and to get a deed. And she testified without objection that the land was to be hers *416 and the deed was to be made to lier. It was also in evidence that Charles said it was his wife’s land; that she had paid for it; that he said to her “it is your land and if you want help to build a house on it, you may do without a house.”

The deposition of one Waiters, was introduced by plaintiff, which tended to prove that the plaintiff gave Charles, the money earned in Asheville, with instructions to pay for' the lot with it, and that Charles said it was his wife’s property. This deposition was objected to upon the ground that plaintiff had failed to show that Waiters was out of the State,, or resided more than 75 miles from Brevard. To meet this-objection, the plaintiff offered testimony to the effect that, Waiters’ family lived in Asheville; that his occupation was. that of a head-waiter at a hotel; that two weeks before, lie-was seen by a witness on board the train and said he was-going to New York.to act as head-waiter in a hotel there,, and that he had not been seen in Asheville since. Upon this evidence, the Court overruled the objection, allowed the' deposition and the defendants excepted.. This exception can not be sustained. There was evidence tending to show that Waiters was not .in the State, and upon this evidence,, it became a question for the Judge to determine; and his decision is not reviewable in this Court.

Defendants contended that the earnings of the plaintiff and her daughter belonged to the- husband Charles, and asked the Court to charge the jury that if they found from the evidence that the lot was paid for by their earnings, the plaintiff could not recover. The Court declined to give this prayer and the defendants excepted.

The law is that the earnings of the .wife belong to the husband. Syme v. Riddle, 88 N. C., 463. And while this is the law, the prayer for instructions, as a whole, was erroneous. The Court could not instruct, the jury that, if they *417 found that the lot was paid for with the earnings of the wife, the plaintiff could not recover, as there was evidence tending to show that Charles treated this money as that of the wife. Hairston v. Glenn, 120 N. C., 341; that she did not only earn the money, but she collected it and gave it to Charles with instructions to pay it to Duckworth for the land she bought from him; and that Charles took the money from her, under these instructions, and paid it. to Duckworth for the land. A. married woman may buy and hold land, and her husband may be her agent. Bazemore v. Mountain, at this term. This evidence and the evidence that Charles said it was his wife’s money and treated it as hers, was sufficient to entitle the plaintiff to have the question submitted to the jury as to whether Charles had not agreed that this money, plaintiff used in paying for the lot, should be her money.

There is no intervention or claim of creditors in this case. Charles died intestate, leaving no issue surviving him. And this is a contest between his widow, the plaintiff, and his brothers and sisters, who are defendants. This being so, Charles had the right to give his wife’s earnings to her, or to recognize and treat her as the owner of her own earnings. Hairston v. Glenn, supra.

The Judge being at liberty to disregard the prayer of defendants for instructions, as it was erroneous in part, left the case without exceptions, except the one we have treated as to the deposition of Waiters. And while the charge of the Court is not as complete as it might have been upon the husband’s right to the earnings of his wife, we fail to see error in the charge, so far as it was given. But, if there had been error, we could not have considered it as it was not excepted to. State v. Blankenship, 117 N. C., 808, and cases cited.

*418 And as it appears to us that substantial justice has been done between the parties, the judgment must be affirmed.

Affirmed.

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