Doak v. Wiswell , 38 Me. 569 ( 1854 )

Howard, J.

— By marriage, the husband acquires a life estate 'in the freehold of his wife. If he survive her, and they have no issue, or none which can inherit the estate, his tenancy ceases -with her life, and the estate of which she died seized descends to her heirs.

Fixtures, and permanent improvements of the freehold generally, made by a tenant for life, or for years, by the common law, go with the estate and descend to the heirs of the owner. But where made by a tenant at will, or for a term certain, and for his own use, by consent of the landlord, they remain the personal property of the tenant, and, upon his decease, constitute a part of his estate. Russell v. Richards, 10 Maine, 429; Osgood v. Howard, 6 Maine, 452; Tapley v. Smith, 18 Maine, 12; Van Ness v. Packard, 2 Peters, 137, 147.

The statute of 1843, c. 6, which gives to the assignee or grantee of a tenant for life, or to his heirs or legal representatives, a right to compensation for buildings and improvements made by him, is an invasion upon the rule of the common law, and gives a right to betterments, not conferred by prior enactments. But that statute must receive a strict construction. In terms it does not apply to a case like this, at bar, where the suit is brought by the tenant for life, after the termination of his estate, for the conversion of buildings erected by him during his tenancy. He stands as he did before the statute was enacted, and his rights remain as at common law, in respect to improvements upon the inheritance. Austin v. Stevens, 24 Maine, 520. The Legislature seem not to have contemplated that he might survive the cestui que vie.

The husband’s interest in the real estate of his wife is acquired by operation of law, and not by contract. He is invested with rights in her estate, over which she has no control at common law. He might commit waste upon her lands with impunity, because ¿he could not restrain him. Under her general disabilities arising from the marriage, she was not competent to restrict or enlarge his rights over her property, or to contract with him in reference to it; and she could not, therefore, consent to his erecting buildings or making improvements upon her property. He must be regarded as making the improvements as tenant for life, in his own right, and irrespective of any contract with his wife. The Acts of 1844, c. 117, 1847, c. 27, 1848, c. 73, and 1852, c. 227, designed to secure to married women their rights to property, have no application to the merits of this case.

The dwellinghouse, constructed as the case finds, was attached to the freehold, and would belong to the inheritance. “ The barn is not connected with the house,” as stated in the report; and it does not appear in what manner it was constructed. But the plaintiff, in a former suit against one of the heirs of his wife, claimed compensation for the buildings, barn and house, as we understand the statement; (Doak v. Wiswell, 33 Maine, 355,) and this action is brought for conversion of the same buildings, regarding both as constituting the same kind of property. As no distinction is shown between them, in this respect, and as the house is clearly a fixture, we cannot treat the barn in any other light than as a permanent structure, attached to the land. It is well known that barns are, not unfrequently, as strongly affixed to the soil, as are dwellinghouses, and we have no authority for concluding that it was not so in the case presented. Plaintiff nonsuit.

Shepley, C. J., and Tenney, Appleton, and Hathaway J. J., concurred.