Ferguson v. . Tweedy

*548 Folger, J. This action cannot he sustained unless Harvey D. Ferguson, the testator, had in his lifetime an estate as tenant by the curtesy in the premises, or some part of them, which were recovered in the action of the respondents against Samuel G. Green, judgment wherein was rendered on the 1st of February, 1861. To establish such tenancy there were needed four things: Marriage, issue of the marriage, death of the wife, and her seizin, during marriage, of the premises in question. There is no dispute but that all of these existed, save the last. It is a general rule that to support a tenancy by the curtesy there must be an actual seizin of the wife. (Mercer’s Lessee v. Selden, 1 How. U. S., 37-54.) The rule is not inflexible. There are exceptions to it. The possession of a lessee under a lease reserving rent, is an actual seizin, so as to entitle the husband to a life estate in the land as a tenant by the curtesy, though he has never received or demanded rent during the life of his wife. (Ellsworth v. Cook, 8 Paige, 646.) Wild, unoccupied or waste lands may be constructively in the actual possession of the wife. (8 J. R., 271.) A recovery in an ejectment has been held equivalent to an actual entry. (8 Paige, supm.) And it has been held that, where the wife takes under a deed, and there is no adverse holding at the time, that actual entry is not necessary. (Jackson v. Johnson, 5 Cow., 74.) But the facts of this case open not the door for any of these exceptions to come in. Before the marriage of the testator to his wife, she did convey by quit-claim deed the premises in question for a term which was in its duration as long as her life. The grantee in that deed, thus acquiring an estate for her life in the lands, did enter, and he and his assign held the possession up to her death and afterward. It is true that this deed was one of two, interchanged between the parties to effect an amicable partition of premises held by them at that time in common. But the execution of these deeds, if followed, as it was, by possession in severalty, was: valid and sufficient to sever the possession for the lifetime of *549 the testator’s wife. (Baker v. Lorillard, 4 N. Y., 257; Carpenter v. Schermerhorn, 2 Barb. Ch., 314, 21.) And from the time of the execution by her of that deed, until the day of her death, she had not, nor had her husband, actual possession of the premises; she nor he made claim to the possession of them; she nor he received rent or other profit from them; she nor he had right to ask possession or rent or profit. In short, there did not any fact exist which, for her lifetime, after the execution of the deed, gave her a constructive possession or right of possession. On the contrary, there did exist in another, so far as she and her husband were concerned, exclusive possession, and right of such possession, for a term which ran for her life. There was, then, an outstanding estate for life in the premises, which, beginning before her coverture began, did not end until her coverture ended. And it is settled, that if there be an outstanding estate for life, the husband cannot be the tenant by the curtesy of the wife’s estate in reversion or remainder, unless the particular estate be ended during the. coverture. (Stoddard v. Gibbs, 1 Sumner, 263-70; In re Cregier, 1 Barb. Ch. R., 598). It is among the facts found by the learned justice before whom the action was tried, that the possession of the grantee in that deed, and of his assign, was actual and exclusive. It is found, also, that neither the wife of the testator, nor the testator himself, did at any time after the execution of that deed have actual possession of the premises, or receive the rents and profits thereof. And these findings are upheld by the proof. There is no escape from the conclusion that there was lacking one of the essentials in a tenancy by the curtesy in favor of the testator. This defect in the plaintiff’s case being fatal, it is not necessary that we examine the other questions involved. The judgment of the court below should be affirmed, with costs to the respondent. All the judges concurring, judgment affirmed.