Giddings v. Cox

Bennett, J. This is an action of ejectment for lot number six in the seventh range, first division, drawn to the right of Daniel Harris, and situated in Mount Tabor, Daniel Harris’ daughter Elizabeth, by the devise of her father, held the title to this lot in fee tail, that is, to herself and the heirs of her body lawfully begotten. She married Christopher Bates, and had by him issue, a daughter, who married Silas Giddings, who with his wife brings this suit. The daughter of Daniel Harris, Mrs. Bates, died on the 24th of February, 1833, and her husband, Christopher Bates, survived her until the 24th of May, 1836. The defendant’s title by adverse possession was made to depend upon the question-whether the statute began to run against the granddaughter of Daniel Harris at the time of her mother’s [609] death, in. 1833, or not until her father’s, death in 1836 ; and that will depend upon the question whether her father was tenant by the curtesy or not. There is nothing in the case to show whether the granddaughter, Mrs. Giddings, was a minor or a feme covert at the time of her mother’s death, in 1833, and of course we can not on this bill of exceptions assume either. Under the 74th section of the act of 1821 (Slade’s Comp. p. 348), it would be clear that Bates would have held a life estate in the lands in question, as a tenant by the curtesy. That statute does not confine the right of the husband to hold the lands of the wife as tenant by the curtesy, to cases where she was seized in fee simple, but would include estates whereof she was seized in fee tail. But in 1823 (p. 359 Slade’s Comp.) a new provision was made in relation to this subject. That act provided that when any man and his wife shall be seized in fee simple in her right, and issue shall be born alive of the body of such wife that could inherit the same, and the wife dies, the husband has a life estate as tenant by the curtesy. The question is, what should be the effect of the act of 1823 upon the act of 1821 ? Does it supersede that act ? We think it is safe to say, “that a subsequent statute revising the whole subject matter of a former one, and evidently intended as a substitute for it, must operate to repeal the former, although it contains no words to that effect.” This is common sense, and wé think it is according to the adjudged cases, not only in this-State, but in other States, as well as in England. This principle was applied by this court to the act of 1843, which declared all general assignments void as against creditors,. The act of 1852, regulating assignments,, was held by implication to repeal the act of 1843 ; Farr v. Brachett and Tr., 30 Yt. 344. The act of 1823 is a revisal of the entire subject, as to the right of the husband to hold lands as tenant by the curtesy, and was no doubt designed as a substitute for the act of 1821. Unless it has that effect it was of no. use, Judgment affirmed.