Planters' Bank of Tennessee v. Davis , 31 Ala. 626 ( 1858 )

STONE, J.

— The deed from Mrs. Manning to Mrs. Lowe reserved a life estate in the former, with a vested remainder in fee in the latter. — Golding v. Golding, 24 Ala. 122; Mackey v. Proctor, 12 B. Monroe, 433 ; Doe v. Croft, 78 Eng. Com. Law, 323 ; Jackson v. McKinney, 3 Wend. 233; Scott v. Baber, 13 Ala. 186; Jackson v. Swart, 20 Johns. 85; Jackson v. Dumbagh, 1 Johns. Cas. 91; Jackson v. Staats, 11 Johns. 351.

If it be conceded that this deed must be construed as a covenant by Mrs. Manning to stand seized to the use of Mrs. Lowe, this does not in the least impair the life estate of the grantoi’. This implied covenant to stand seized is but a legal fiction, called into being as a precedent estate to support the remainder, and does not import a present actual or constructive seizin (possession) in the remainder-man. Such remainder-man is not the “ person for whose use, or in trust for whose benefit, another is seized of lands,” within section 9 of the act of 1812.^Clay’s Big. 157, § 36. The use and trust contemplated by this section, are a present vested use and benefit; a present right to the usufruct.

The question we are considering comes under section 8 of the act of 1812. — Clay’s Big. 156, § 35. That section, omitting the parts which are not pertinent to this case, reads as follows: “ In all cases, * * by deed operating by way of covenant to stand seized to use, the possession of the bargainor, releasor, or covenantor, shall be deemed- * * to be transferred to the bargainee, releasee, or person entitled to the use of the estate, or interest which such person hath or shall have in the use, as perfectly as if such bargainee, releasee, or person entitled to the use, had been enfeoffed, with livery of seizin, of land intended to be conveyed by the said deed or covenant.” This section transfers the possession or seizin, only to 'the extent that the grantee hath or shall have an interest in the use ; and as the interest oí Mrs. Lowe was only in remainder, this statutory or constructive seizin could operate to no greater extent.

As Mrs. Lowe died long before the act of 1812 was superseded by the Code, it is perhaps unnecessary that we should consider to what extent this question is affected by the latter compilation of laws. If material, however, it is clear that Mrs. Manning’s life estate would be protected under section 1329 of the Code, which reads as follows : “ The grantor in any conveyance may reserve to himself any power beneficial, or interest, which he may lawfully grant to another.” — See, also, 4 Kent Com. (8th ed.) 551; Bedell’s case, 7 Coke 633.

It being thus shown that Mrs. Manning had a life estate in these lands which did not determine during the lifetime of Mrs. Lowe, the rule applies in all its force, which declares, “if there be an outstanding estate for life, the husband cannot be tenant by the curtesy of the wife’s estate in reversion or remainder, unless the particular estate be ended during the coverture.” — 4 Kent’s Com. (8th ed.) 28; Stoddard v. Gibbs, 1 Sumner, 263; 1 Roper’s H. & W. 9, et seq. ; 1 Bright on H. & W. 119 ; Mackey v. Proctor, 12 B. Monroe, 433; Taylor v. Gould, 10 Barb. Sup. Ct. 400; 2 Tuck’s Com. 57; Eldridge v. Forrestall, 7 Mass. 253; Blood v. Blood, 23 Pick. 80; Shoemaker v. Walker, 2 Serg. & Rawle, 554; Weir v. Humphries, 4 Ire. Eq. 279; Fisk v. Eastman, 5 N. H. 240; Dunham v. Osborn, 1 Paige, 364.

Having thus shown that one of the essential elements in every title by curtesy — viz., seizin, either actual or constructive, at some time during the coverture — is wanting in this case, we need not consider any other question presented by the record. }

The judgment of the circuit court is affirmed.