Furguson v. Tweedy

By the Court,

Jambs, J.

The plaintiff’s right to the relief demanded by his complaint depends entirely upon the question whether he had an estate for life, as tenant by the curtesy, in the undivided half of that portion of the premises set apart to, and taken possession of by, Samuel G. Green, in virtue of the particular deeds by and between said Samuel and Maria Green, before her marriage with the plaintiff'.

The old established rule is, that four things.are requisite to an estate by the curtesy; marriage, actual seisin of the wife during coverture, issue, and death of the wife. One question here is, whether there was such a seizin of the .wife, of the premises in question, as was requisite to create the tenancy. The general rule, according to the English law, is, that the wife must have been seised in fact and in deed, and not merely in law, to entitle the husband to his curtesy, (4 Kent's Com. 29;) and that there must have been an entry during coverture. (1 How. U. S. Rep. 37.) It is said in Coke Lift. 29, eh. 4, § 35, “ tenant by the curtesy, of England, is, when a man taketh a wife seised in fee simple, or in fee tail in general, or seised as heir in tail special, and hath issue by the same wife, male or female, born alive, albeit the issue after dieth or liveth, yet if the wife dies the husband shall hold the land during his life. And first, of what seisin a man shall be tenant by the curtesy. There is in law a two fold seisin, viz., a seisin in deed and a seisin in law, and here Littleton intendeth a seizure in deed, if it may he attained unto, as if a man dieth seised of land in fee simple, or fee tail general, and these lands descend to his daughter, and she taketh a husband and hath issue, and dieth before any entry, the husband shall not be tenant by the curtesy; and yet in this case she had a seisin in law; but if. she or her husband had during her coverture entered, he should have been tenant by the curtesy. A man shall not be tenant by the curtesy, of a bare right or title, or a reversion, or remainder expectant upon any estate of freehold, unless the particular estate be determined or ended during the coverture.” This is still the general rule, although it has been somewhat relaxed in this country, where the wife is the owner of waste, wild or uncultivated lands, not held adversely; for in such cases she is deemed seised in fact, so as to entitle her husband to his curtesy. (8 John. 262.)

In this case, on the death of the testator, Henry Green, his children, George and Maria Green, by virtue of the will, were in possession of the 300 acre farm as tenants in common. But by proceedings under the absconding debtor act, good as against Maria Green, the undivided possession of George Green in said 300 acre farm had passed to Samuel G. Green; and he and said Maria had, by deeds, partitioned, as between themselves, said farm, until she, or the said George, should die without lawful issue; and each had entered into and were in exclusive possession separately of said parcels of land, before her intermarriage with the plaintiff, Furguson; so that she was not, at the time of her marriage, in the actual possession of the premises described in the complaint, or any portion thereof, nor was she seised in fact of such portion at any time during coverture. The deed from Maria to Samuel G. Green was a valid and binding instrument, and passed an absolute estate for the period defined therein, as against her, so long as she remained undisturbed in the share released to her.

It therefore follows that the plaintiff’s wife was not seised in fact, at any time during coverture, of the undivided half of the premises conveyed to Samuel G. Green, and therefore the plaintiff took no estate by the curtesy therein.

The plaintiff’s ground for recovery is that as Maria Tweedy, in 1861, recovered the premises in question, as the heir at law of her mother, and such recovery being based on the theory that the partition deeds became inoperative upon the death of her mother, whereby George became seised in fee, as tenant in common with Maria Tweedy, she is estopped from denying that her mother was seised in fact, of the premises in question, at the time of her death, and during coverture. This reasoning is entirely fallacious. The mother, before her marriage with the plaintiff, had disposed of her interest in, and had surrendered the possession of, the premises in dispute for her life, or the life of George without issue. This estate did not terminate until her death; in fact, not until the death of George, he having died without issue. On the death of Maria Green, her estate in the 300 acre farm descended to the heir at law; and on the termination of the partition, the heir became a tenant in common of an undivided moiety; the right of the husband to curtesy being dependent upon a seisin in fact by the wife during coverture, and the right of the heir being dependent upon no such condition, a seisin in law being sufficient, it is plain how the heir at law could, after the death of George, recover the undivided half of the share of the- 300 acres partitioned to Samuel G. Green, and the plaintiff, as her husband, not be entitled to maintain a recovery for curtesy in said portion.

The interest of the heir and the tenant by the curtesy are not identical, but hostile; they claim by several and distinct titles, and different estates; there is between them no unity of interest, no unity of title, no unity as to the commencement of title, and no unity of possession; one claims an absolute fee in possession, the other an absolute estate for life in possession; so that a tenancy by the curtesy cannot be builded upon the estate of the heir.

The heir may inherit and recover the possession of much that a husband cannot obtain curtesy in. The husband can only have his curtesy in the lands of which the wife was seised in fact during coverture; and he must recover upon the strength of his own case, and not upon the success of the heir. Therefore, the 'defendants in this case are not estopped by the judgment in favor of the heir against Samuel G. Green, from asserting that the plaintiff’s wife was not seised in fact of the premises in question during coverture.

But conceding that the plaintiff had, on the death of his wife, an estate for life in the premises in question, as tenant by the curtesy, it was barred by lapse of time when this action was commenced; and this, too, whether we date from the death of his wife, or from the death of George, as the period for the termination of the partition and the commencement of the running of the statute. In one case thirty-one years expired before the commencement of this action, and in the other, twenty-four years. As to the plaintiff, the title acquired by Samuel G. Green has never been impeached; as against the plaintiff, Samuel G. Green, and those claiming under him, hold the whole of that interest adversely; and when this action was commenced it was too late to attack that title.

Again; the plaintiff’s wife and Samuel G. Green, for all the purposes of this action, were tenants in common of the 300 acre farm; they made a partition, as between themselves, and took separate possessions; that separate possession continued until the wife’s death, and was acquiesced in, and occupied under, by the husband, as tenant by the curtesy, and as and for his curtesy for thirty years, until 1862, when he released and conveyed the same, for a valuable consideration, and delivered possession thereof. He is therefore estopped from claiming his curtesy in the premises in question. By his action he elected to take his curtesy out of the portion of the estate accepted by his wife as her share; and having by his own election received the entire rents and profits of all his wife’s interest in the estate, he cannot repudiate the division, or his acts, and claim the rents and profits of an undivided half of the other moiety. If allowed so to do, he would thus obtain, as tenant by the curtesy, the rents and profits of three-fourths of an estate in which his wife had a legal title only to one-half.

I do not deem it necessary, in the view I have taken of this case, to examine the grounds on which the case of Tweedy v. Green was put by this court, when that case was before it, because I do not see as it would make any difference in this case whether Mrs. Tweedy did, or did not, take an absolute estate in fee in the share of George Green, on his death, under the executory devise of Henry Green.

[Schenectady General Term, April 5, 1870.

There is no principle of law or equity on which this ■action can be sustained. The law seems to be clearly against the plaintiff’s right of action, and the effort to recover is clearly inequitable and unjust.

The judgment should be affirmed.

Rosekrans, Potter, Bockes and James, Justices.]