Jones and Wife v. . Carter

PeaksoN, C. J.

At common law a husband, after the birth of issue, became entitled to an estate for his life as tenant by the curtesy initiate, and had a right to convey his estate.

This land was acquired by the wife after the act of 1848. Admit that the effect of that act is to deprive the husband of his right to acquire an estate for life as tenant by the curtesy initiate, which is the only mode by which the provision that he shall not dispose of the land for his life can be carried into effect; still the husband was entitled to the rents and profits during the coverture, until such time as the wife objected to it and set up her claim by reason of her ownership of the land. This she did not do until the commencement of this action, May 5th, 1878. It follows that one who purchased from the husband has a right to recover the price paid for the supposed life estate of the husband under his warranty, so as to recover rents and profits up to the commencement of the action. The judgment below will be modified so as to allow Mrs. Jones, th%feme plaintiff, damages for the rents and profits only from and after 5th of May, 1873.

This opinion will be certified.

Pee CueiaM.

Judgment accordingly.