RoBards v. Murphy , 64 Mo. App. 90 ( 1895 )

Rombauer, P. J.

Tbe plaintiff sues to recover tbe value of a pane of plate glass in tbe window of bis bouse, wbicb be alleges was broken by tbe negligence of defendant’s servant in managing defendant’s team. He gave evidence upon tbe trial tending to sbow tbe negligence and injury. He also gave evidence tending to sbow that tbe real property, of wbicb sueb window formed part, was deeded to bis wife in 1874; that be bad married ber tbirty-four years ago, and that there were three children born of tbe marriage; that bis estate in tbe property was that of a tenant by tbe curtesy initiate; that be has been for years in possession of the property, and controlled the same as such tenant of the freehold.

At the close of the evidence the court instructed the jury to find a verdict for the defendant, presumably on the ground that the plaintiff had shown no such interest in the property as would enable him to maintain the action; whereupon the plaintiff took a nonsuit, and, after an ineffectual motion to set it aside, appeals to this court and assigns for error the above instruction of the court.'

A tenancy by the curtesy initiate still exists in this state. It is not necessary to decide to what extent the rights of such a tenant have been affected by recent statutes, as it has been repeatedly decided that these statutes have no retrospective operation. Leete v. State Bank, 115 Mo. 184; Arnold v. Willis, 30 S. W. Rep. 517. They were enacted subsequent to the acquisition of plaintiff’s estate. It was held in Canby v. Porter, 12 Ohio, 80, that the estate of a husband in the lands of his wife after issue born is a freehold during the joint lives of himself and wife, with a freehold in remainder for himself as tenant by the curtesy, with remainder to the wife and her heirs in fee, which definition, barring the fact that the technical term remainder is properly applicable to conventional estates only, is a correct definition of such an interest. A tenant by the curtesy initiate is seized of a freehold . estate in his own right, and the interest of his wife is a mere reversionary interest depending upon the life estate of the husband. Foster v. Marshall, 22 N. H. 491. Though his claim is in the right of his wife, it is really his own claim. Fugate v. Pierce, 49 Mo. 441; State v. Macklin, 41 Mo. App. 335; Meriwether v. Howe, 48 Mo. App. 148; O’Bryan v. Allen, 95 Mo. 68. It will not be claimed that the breakage of a pane of glass is an injury to the inheritance as distinguished from the injury to a freehold for life. The tenant for life is under obligation to keep the building he owns as such tenant in repair.

The judgment is reversed and the cause remanded.

All the judges concur.