Nixon v. . Williams

MerkimON, J. (after stating the 'facts). The plaintiff contends, that he has a life estate in the lands described in the complaiut, as tenant by the curtesy, and is entitled to the possession thereof. The defendant, on the contrary, contends that he has not such estate, because his deceased wife never had actual seizin of the land. Seizin, as applied to land, is a technical term, that implies the possession of an estate of freehold. Seizin in law, is the right to have such possession. Seizin in deed, is the actual possession of the freeholder. It means more than the mere possession — it is possession with the legal right to the estate in the land. At the common law, it is essential that the wife, or the husband in the right of the wife, shall have seizin in deed — that is, *105 actual seizin — actual possession of the estate, to entitle the husband as tenant by the curtesy. Now granting that the wife must have had seizin in deed, as contended by the defendant, she had such seizin. It is probable that she lived with her husband, on the land, during the year he cultivated it — it is fair to infer so; but it is certain she went upon it, and lived with her mother in the dwelling house for some time — how long, does not appear — before her death, and died there. She was there as of her own right, and not simply by permission or curtesy. She was upon, and in the actual posession of her own land, and she could not have been put out of possession rightfully. She had actual seizin and perfect title, and thus her husband became entitled as tenant by the curtesy, of the laud whereof she was so seized. The Code §1838. No matter what may have been her motive in going upon the land, as soon as she went upon it, the law at once clothed her with every right, and all the authority she could have by virtue of her title, and which she could assert by entry. She could not repudiate her right as the owner of the inheritance, and agree to become a trespasser, or to be in possession of some other than her real title. In that respect, the law determined her condition and relation to the land. Gadsby v. Dyer, 91 N. C., 311; Gaylord v. Respass, 92 N. C., 553. The widow entitled to dower remained upon the land after the death of her husband, and continued to do so for several years, but no dower was ever assigned to her. Her possession was not adverse to the wife of the plaintiff, in her life-time; indeed, she was in possession under her, and the defendant’s presence did not have the effect to prevent the seizin of the plaintiff’s wife, or his rights as the husband. The plaintiff is entitled to have possession of the land as tenant by the curtesy, and the judgment must be affirmed. No error. Affirmed.