Jackson ex dem. Beekman v. Sellick

Kent, Ch. J. delivered the opinion of the court. The .defence, in this cause, turns wholly upon the question, whether the right of recovery is not barred by the statute of limitations. The lessor of the plaintiff was an infant when the adverse possession began, in the year 1772. But admitting that the father, Vincent Matthews, was tenant by the curtesy, there was then a particular estate for life in the premises existing, and no right of entry had descended, or could vest in her, during the continuance of that estate. It was declared, in Jackson v. Schoonmaker, (4 Johns, Rep. 390.) to be the law, that the statute of limitations did not affect the right of a remainder-man during the continuance of a particular estate; nor would the acts or laches of the tenant of the particular estate, affect the party entitled in remainder. The right of entry of the lessor did not accrue, and could not exist during the estate by the curtesy. That estate ceased by the death of Matthews, in 1784, and had she been under no disability, she would then have been bound to have brought the suit within 20 years thereafter, but she was at that time a feme covert, and protected from the statute of limitations, by the proviso in favour of the disability of coverture. (Laws, vol. 1. 563.) This is not a case of cumulative or successive disabilities, and we, at present, have no concern with any question to which they might give rise. The coverture was the first and only disability existing, when her right of entry accrued, and that is expressly saved by the statute. There is no bar to the plaintiff’s right of recovery, under the statute of limitations, provided her father was a tenant by the curtesy, and this is the next and only real point in the case. ' There was no pedis possessio, or possession in fact, of the premises, in the popular sense of the words, by either Matthews or his wife, during the coverture; for the lands continued vacant, or remained as new lands, wild and [270] uncultivated, from the date of the patent in 1704, to ^ t'me Qf ,j)e commencement of the adverse possession in 1772. The title under the patent to an undivided eighth part of the premises, clearly existed in Matthews’s wife. She derived it by will from her mother, who was one of the four coheirs of Henry Van Ball. The question is, was she not to be considered as seised iii fact of these premises, so as to enable her husband to become a tenant by the curtesy ? To deny this, would be extinguishing the title of tenant by the curtesy, to all wild and uncultivated land. It has long been a settled point, that the owner of such lands is to be deemed in possession, so as to maintain trespass. The possession of such property follows the title, and so continues, until an adverse possession is clearly made out. This is the uniform doctrine of this court; and there is no reason why the same rule should not apply when the title by curtesy is in question. To require the actual occupation of such lands, during the coverture, would be an unreasonable, if not an impracticable requisition. The general language of the English cases is, that there must have been actual entry, but the rule had reference to enclosed or cultivated lands. We must take the rule with such a construction as the peculiar state of new lands in this country requires; and this may be done without any departure from the spirit and substance of the English law. Some of the old books would not allow the curtesy, without actual entry upon the lands, even though it appeared to have been impossible for the husband, with the utmost diligence, to have made the entry during the coverture,. (Perkins, 470. Doct. & Stud. Dial. 2. c. 15.) But Lord Coke talks more reasonably. He says, that if a man seised of an advowson, or rent in fee, has issue a daughter, who is married and has issue, and he then dies seised, and the wife, before the rent became due, or the church became void, dies, she had but a seisin in, [271] law, and yet her husband shall be a tenant by the curtesy, because he could by no industry attain to any other seisin. Et impotentia excusat legem. (Co. Litt. 29. a.) The letter of the rule was very much relaxed by Lord Hardwicke. In De Grey v. Richardson, (3 Atk. 469.) he allowed the curtesy in lands on which, when they descended to the wife, there were leases for years existing, and a rent incurred which remained due during three months of the coverture, and into which lands she made no entry, nor received any payment during her life. He professed to decide the case, as a question of law, and said that this was such a possession in the wife hs made the husband tenant by the curtesy. In another case before Lord Hardwicke, of Sterling v. Penlington, (7 Viner, 149. pl. 11.) he allowed this title, when the wife had been, in fact, denied possession during the coverture, by a tenant in common, who supposed, through mistake, that the wife’s right, as heir, had not then accrued. These cases are as strong as the present, and prove that actual entry, or pedis possessio, is not absolutely requisite, and that if the party is constructively seised in fact, it will be sufficient. The court are accordingly of opinion, that the plaintiff is entitled to recover one undivided eighth part of the premises. Judgment for the plaintiff.'