Mitchell v. Whitmore ( 1871 )

Opinion op the Court by

Judge Lindsay:

The real question involved in this suit is whether Frederick Whitmore, the ancestor of the appellees, held a life estate as tenant by the curtesy, in that portion of the land conveyed by Marrs, to which his declared wife was entitled as one of the heirs of William Hinds.

It is insisted that he did not hold such estate, because there was no actual seizen by him of his wife’s estate in said land during coverture. That the entire tract was divided into two distinct and well-defined parcels, and that his seizen did not extend to any portion of the tract outside of the parcel conveyed by the remaining heirs to him. This proportion is correct unless there was an actual seizen by one or more of the coparceners before the partition between Whitmore and Marrs. Of this fact we think there can be no doubt. While it does not appear that any of the coparceners resided upon the land after the death of William Hinds, and before the partition, the conveyance from the heirs to Whitmore and Marrs establishes conclusively that the partition between them was made by an actual survey. The parcels allotted each and described by metes and bounds and the courses and distances given with scrupulous exactness. While this survey was being made, there was an actual seizen of the entire tract by all of the heirs jointly, and though it continued but for a moment, it was sufficient in law to invest the husband of the female coparceners with the right to hold life estates by the curtesy in their respective undivided interest. It is true that Williams in his work on Eeal Property, seems to regard the possession by the husband of the land of the wife held in coparcenary as insufficient to entitle him to take by the curtesy. But Mr. Kent defines the rule to be that, “when a man marries a woman, seized at any time during the coverture of an estate of inheritance in severalty, in coparcenary, or in common and hath issue by her born alive * * ■* he holds the land during his life by the curtesy of England. (Kent’s Com. vol. 4, side page 28.) Although we have been unable to find any decision of this court upon the exact question in issue,- we think the reason of the law is'clearly with Mr. Kent, and are of opinion that Whitmore held an estate for life in the undivided interest of his deceased wife in the land conveyed to and held by Marrs and his vendees. We are of opinion that the verdict of the jury is fully sustained by maintainable evidence, and that if the evidence complained of as being incompetent had been excluded the verdict would necessarily have been the same. The revision by the appellees of the slight excess of land found for them fully cured this error.

Huston, James, for appellant. Kinhead & Darnall, for appellees.

Perceiving no error in the proceedings prejudicial to the substantial rights of the appellant, the judgment of the court below must be affirmed.