Todd v. Oviatt

Loomis, J. The complaint in this action demands the possession of a certain house and lot in the city of New Haven. The answer of the defendant, which was demurred to by the plaintiffs, sets forth the facts that control the case. Elam Hull of New Haven died in 1863, leaving a valid will, which gave to his widow, Nancy Hull, the real estate described in the complaint, during her natural life, with remainder to his daughter, Louisa Oviatt, then wife of the defendant Henry N. Oviatt, and to her heirs forever. Mrs. Oviatt, the devisee of the remainder, died in 1864 before her mother, having had two children of her marriage with the defendant, who are the plaintiffs in this action and her heirs at law. Mrs. Hull, the devisee of the life estate in the demanded premises, died in 1869. The gist of the answer is, that the defendant, as surviving husband of Mrs. Oviatt, is entitled to the possession of the premises in question as tenant by the curtesy; and the point of the demurrer is that, as Mrs. Oviatt died before the expiration of the life-tenancy of her mother, she never had even a right to the possession, and consequently there was no legal — 182 — seisin in the wife to furnish one of the indispensable requisites of title by the curtesy in the surviving husband. The sole question for discussion as presented by the pleadings is—May a husband be tenant by the curtesy in lands of which his wife had only a remainder, expectant on a prior estate which did not determine during coverture ? The four requisites to make a tenant by the curtesy, as stated in Blackstone’s Commentaries, and in all the treatises on the common law that include this subject, are marriage, seisin of the wife, birth of issue capable of inheriting, and the death of the wife. No one of these requisites up to the present time has ever been dispensed with by the courts of England or the United States, unless pursuant to some statutory enactment. Some disparity however exists in the definition or application given by different courts to the word “ seisin.” Blackstone (vol. 2, p. 127), after stating the requisites as above, adds :—“ The seisin of the wife must be an actual seisin or possession of the lands ; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed.” This is still the general rule ; but certain exceptions have been recognized and adopted by several courts. The possession of a lessee under a lease for years reserving rent, is regarded as an actual seisin in the wife as reversion-er, so as to entitle the husband to an estate as tenant by the curtesy, although he never received or demanded rent during the life of the wife. Ellsworth v. Cook, 8 Paige, 646; De Grey v. Richardson, 3 Atk., 469;l Watts v. Bull, 1 P. Wms., 108. Wild uncultivated lands may be constructively in the wife’s possession unless in the adverse possession of another. Pierce v. Wanett, 10 Ired. Law, 446; Davis v. Mason, 1 Pet., 507; Clay v. White, 1 Munf., 162. Recovery in ejectment has been held equivalent to actual entry. And where the wife takes under a deed actual entry is not necessary. Jackson v. Johnson, 5 Cowen, 74, 97; Adair v. Lott, 3 Hill, 182, 186. And in the states of Connecticut, Pennsylvania, Ohio, — 183 — Mississippi and Tennessee, a right of entry on the part of the wife would be a sufficient seisin, although the premises were in the adverse possession of another. Stoolfoos v. Jenkins, 8 Serg. & Rawle, 175; Borland v. Marshall, 2 Ohio St., 308; Redus v. Hayden, 43 Miss., 624; Bush v. Bradley, 4 Day, 209; 1 Washb. Real Prop., 3d ed., top page 160. But this is substantially the extent of the modifications of the common law idea of seisin of the wife as applicable to the husband’s right to an estate by the curtesy. And there is on the other hand a remarkable consensus of judicial opinion in the courts of England and the United States, and among all the text-writers upon the subject, to the effect 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 coverture. 1 Bishop on the Law of Married Women, § 489 ; 1 Washb. Real Prop., 4th ed., top p. 175, § 33; Tyler on Infancy & Coverture, 2d ed., § 284; 4 Kent’s Com., 59; Moody v. King, 2 Bing., 447; Ferguson v. Tweedy, 43 N. York, 543; Shores v. Carley, 8 Allen, 425; Brooks v. Everett, 13 id., 457; Fisk v. Eastman, 5 N. Hamp., 240; Orford v. Benton, 36 id., 395; Hitner v. Ege, 23 Penn. St., 305; Watkins v. Thornton, 11 Ohio St., 367; Stoddard v. Gibbs, 1 Sumn., 263; Medley v. Medley, 27 Gratt., 568; Adams v. Logan, 6 Monr., 175; Planters’ Bank v. Davis, 31 Ala., 626; Malone v. McLaurin, 40 Miss., 161; Reed v. Reed, 3 Head, 461; 4 Am. & Eng. Encyc. of Law, 961, and cases there cited. The proposition established by such a weight of authority, being identical with the question in this case, ought to control, unless it is found to contravene some peculiar policy, system or precedent, already established in this state, or unless it is productive of injustice or great inconvenience. And here the counsel for the defendant earnestly contend that the proposition is in direct contravention of our peculiar system and opposed to some early decisions of this court. They rightfully claim that credit is due the courts of this state for repudiating at an early day one of the fruits of the feudal system, which has come down to us preserved in the — 184 — common law maxim, “ Non jus sed seisina facit stipitem; ” it is not the right but seisin that makes the stock or root. But we cannot yield a like hearty assent to the claim that, because we have repudiated mere seisin as the stock of inheritance in distributing the estate of a deceased person among his heirs, a logical necessity must compel this court to cast upon a surviving husband a tenancy by the curtesy in lands which his wife could by no possibility have enjoyed during the existence of the marriage relation. The position of the husband in relation to property belonging to his wife and to her children is very different from that.between an intestate and his natural heirs in reference to the estate to be distributed. It does violence to the dictates of natural affection and our sense of justice to see a purely artificial and arbitrary rule erected between an intestate and the natural objects of his bounty. The very maxim that embodies the rule contains an implied confession that it is wrong, for the language is, “ not right, but seisin.” But on the other hand, to adopt the language of Hosmer, C. J., in Heath v. White, 5 Conn., 235, “ the system of tenure by the curtesy is at least pretty artificial, and is what it is because ita lex scripta est.” Its origin is not very well known, nor is there any principle to which by common consent it is referable. But the counsel for the defendant contend that the reason for requiring actual seisin in the wife is to be found in the fact that the common law confined inheritance to the stock of actual seisin. If it clearly appeared that this was the sole reason the defendant would be entitled to the benefit of the rule “ that when the reason of any particular law ceases, so does the law itself.” The citation from 2 Blackstone’s Commentaries, 128, and from 1 Greenleaf’s Cruise, tit. Curtesy, sec. 23, to the effect that the rule as to seisin in curtesy probably arose from the rule as to inheritance, at first impressed us as furnishing strong support for this position. But on turning to Williams’s able treatise on Real Property, 4th edition, appendix E, star pages 491 to 502, we found an exhaustive discussion — 185 — of this question in which he clearly shows by many citations from Coke, Littleton and Blackstone, as well as by other reasons, that this supposition is not true; and his conclusion is “ that the reason why an actual seisin was required to entitle the husband to curtesy was that his wife may not suffer by his neglect to take possession of her lands, and in order to induce him to do so the law allowed him curtesy of all lands of which an actual seisin had been obtained, but refused him his curtesy out of such lands as he had taken no pains to obtain possession of.” In 2 Blackstone’s Commentaries, star page 131, under the head of dower, it is said: “A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable; for it is not in the wife’s power to bring the husband’s title to an actual seisin, as it is in the husband’s power to do with regard to the wife’s lands; which is one reason why he shall not be tenant by the curtesy but of such lands whereof the wife, or he himself in her right, ■was actually seised in deed.” Lord Coke also has a statement to the same effect. Bishop, in his treatise on the “ Law of Married Women,” argues that curtesy does not depend solely on the right of issue to inherit, but upon the nature of the wife’s estate as well—that it was one that might have been made to yield sustenance to the married parties during coverture. After an able review of all the leading authorities, he says (§ 499): “The result of this reasoning seems to be that, while.the possibility of the issue inheriting is essential to curtesy, actual possession of the hereditaments by the wife is also essential ; curtesy not arising except where the two concur. In this respect the analogy of curtesy to dower is complete. If we suppose that dower was given to assist the widow in her own maintenance and curtesy to assist the husband in maintaining the children, the analogy ought to be complete; and the law is not unreasonable in declining to give, after death, the use of what was not in use during life.” These considerations would seem to be ample to show that the abolition of the common law maxim requiring — 186 — seisin for the stock of inheritance.does not logically determine the right of the husband to curtesy in a remainder which could not by possibility have vested in possession during coverture. And finally, the fact that nearly or quite all the states in this country, and England also, have abolished the maxim referred to, and now distribute the estates of intestates among the heirs without any reference or regard to the actual seisin of the ancestors, and yet at the same time hold firmly to the doctrine that either actual or legal seisin is an indispensable requisite to title by the curtesy, affords the strongest presumption against the correctness of the defendant’s position. But all this discussion will be in vain if the precise question under consideration has already been decided by this court in the way counsel for the defendant contend. Only two cases are relied upon in support of this contention— Bush v. Bradley, 4 Day, 298, and Kline v. Beebe, 6 Conn., 494. In the first of these cases the facts, so far as they relate to curtesy, were as follows: Robert Woodhouse died actually seised of the premises in 1775. On his death they descended to Mary, his only child, who married James Gold-ear in 1794. She died in 1807, her husband surviving her, having had children who could have inherited the premises. Neither Goldear nor his wife ever had actual possession of them during coverture, but the defendant had been in possession adversely for more than twenty years. The question was whether Goldear was tenant by the curtesy. There is no doubt that the court, by a majority of its members, held that actual seisin was not necessary to make the husband tenant by the curtesy. But whether or not the court intended to hold constructive seisin or a seisin in law to be necessary is left in some doubt. There existed a right during coverture to recover the possession, so that the case was in fact one of constructive seisin. If we except a single passage at the close of the opinion of the majority of the court, given by Reeve, J., the reasoning is strictly confined to the precise case before the court, where there was a constructive — 187 — possession. It is as follows: “ We have always considered ownership of real property sufficient to maintain an action of trespass against every intruder; but by the English law .actual possession by entry is necessary. We have always considered ownership as giving a right to possession of real property, as much so as ownership of personal property. Ownership in the one case draws after it possession as much as in the other case; and whenever a right of possession is lost, all title and ownership are lost. * * * The English law distinguishes betwixt a right of possession and a right of property; but our law does not. Wherever there is a-right to real property, there is of course a right of possession.” The concluding interrogator)'—why seisin should be thought necessary to curtesy, since it had been dispensed with in cases of descent, may have been intended, notwithstanding its unlimited terms, merely to furnish an argument for dispensing with actual seisin only; otherwise it would seem impossible to explain why so much stress had been placed in all the previous reasoning on the right to take possession as the controlling fact. But in the argument for the defendant our attention was repeatedly called to the word “ ownership ” as constituting seisin. The meaning however is explained, we think, in the same opinion, as involving not abstract title alone, but also the right of possession; and it is explained again in Chalker v. Chalker, 1 Conn., 87, 88. Trumbull, J., after citing a passage from the opinion in Bush v. Bradley, said the word “ ownership ” was there used in its strict legal sense, and added:—“It is a mistake to suppose that our courts have arbitrarily disregarded the rules of the common law, for I hold that in this state we have adhered to them as strictly in all these points as has been done in England, and that every deviation is either directly enacted in express words, or clearly deducible from the legal construction of our own statutes; ” and it was held in that case that an actual entry was necessary to revest a freehold estate forfeited for breach of a condition in a deed. In Shelton v. Alcox, 11 Conn., 249, Williams, C. J., in giving the opinion of the — 188 — court said:—“ When we say a man has the title to a farm, we mean he is the* owner of it, and vice vend. And this corresponds with the legal meaning. He who has the possession, the right of possession, and the right of property, has a perfect title.” In Kline v. Beebe, supra, the land in question had been devised to Deborah Bolles for life or during widowhood, with remainder to her daughter Patty, who married the plaintiff in 1795. Four years before her marriage, when she was only eighteen years of age, she deeded the property to the defendant’s grantor. She arrived at full age more than a year before her marriage, and died in 1815, having had children by the plaintiff. Her mother Deborah also died during the same year, but whether it was before or after the death of Patty the record nowhere discloses. The question of curtesy was not brought up for review at all by the motion for a new trial, if we may judge by the brief and argument in support of the motion, for there is no hint or allusion to the question at all. Moreover the record expressly says—“ The plaintiff had children by Patty, and was without question tenant by the curtesy of lands whereof she was seised during the coverture.” There was no discussion or reasoning by the court except upon the three points made as to the validity of the deed given by Patty when she was under age, in respect to which the court determined, 1st, that the deed was not void by statute as she was not under the government of a parent or guardian; 2d, that at common law the deed was not void but voidable only; and 3, that after the arrival of the grantor at full age it was ratified and affirmed. The only allusion to curtesy consisted of a preliminary remark by Hosmek,, C. J., before he came to the questions for review, as follows: “ The title of the plaintiff as tenant by the curtesy is not defective for want of actual seisin in his wife. A husband in this state may be tenant by the curtesy of lands, although his wife was not actually seised during the coverture. Bush v. Bradley, 4 Day, 298.” This at most merely affirms the former case, or, if it does any more, it clears up that decision by — 189 — showing by implication that a seisin in law is the seisin required, the term “ actual seisin ” being almost invariably used in contradistinction to seisin in law. It is probable that the court made this statement because counsel for the defendant had said—“ The plaintiff is not entitled to recover as tenant by the curtesy, his wife not having had possession in fact of the land during coverture. Further, as her deed was only voidable, and it was not avoided during her life, she had no ownership or right of possession during the coverture, within the principle of Bush v. Bradley, 4 Day, 298.” This claim strikes us as very significant, for it shows that the very eminent counsel who made the point understood that the principle of Bush v. Bradley was, that a right of possession made a sufficient seisin as distinguished from “ possession in fact,” and it is also implied that counsel believed the life-estate of Deborah had determined during the coverture, for the only reason given why there was no right of possession in Patty was, that she had given a deed of all her rights which vested all her interest in the grantee, until at least the deed was avoided, which was never done. If the estate for life had not determined counsel would surely, as it seems to us, have mentioned that fact, having their minds directed specifically to the point whether there was a right of possession during coverture. Counsel for defendant in the case at bar claimed that, in the dissenting opinion of Peters, J., a suggestion was made indicating that the mother survived Patty. The remark was—“ The grantor was sui juris one year only before she died, during the existence of the particular estate and when she had no right of entry.” But this manifestly refers to the year 1794-6, when she was of full age and before her marriage. Hosmer, C. J., in considering the question whether Patty had ever affirmed her deed, on page 506 states the same fact, that she “ arrived at full age more than a year before her intermarriage with the plaintiff and about three years after the deed •was executed.” It seems to us that this case cannot be regarded as an au — 190 — thority supporting the contention of the defendant. At the most and without discussion it simply affirms the proposition that actual seisin in the wife is not essential to curtesy in this state. We must then recur to the question—what was decided in Bush v. Bradley? It seems to us that the construction claimed by the defendant’s counsel ought manifestly to be the true one, to justify this court in taking a position utterly opposed to the settled law of all other jurisdictions. Instead of being manifest, it must be conceded to be very doubtful whether the court intended to go, or did go, beyond dispensing with the necessity of seisin in fact, and substituting a right to possession, or seisin in law. If not so in doubt how does it happen that on the one hand such able and accurate text writers as Washburn, Bishop, Sharswood and Williams, as well as others, restrict the decision to the above point; while on the other hand Chancellor Kent and some others seem to give the decision larger scope. Referring to our own text writers, we find it stated in 1 Swift’s Digest, top page 87, that “ in this state it has been decided that a legal right to lands without actual seisin or possession is sufficient to entitle the husband to curtesy.” This fails to clear up the doubt, although it is consistent with the position that only actual and not constructive seisin is dispensed with. In Dutton’s Digest, p. 52, it is said:— “ In this state the husband may he a tenant by the curtesy of land to which the wife had title, but of which she was not actually seised during coverture. Kline v. Beebe, 6 Conn., 499. The same principle was previously adopted in Bush v. Bradley, 4 Day, 298, although a seisin in law of the wife during coverture is requisite.” It seems to us that this last sentence clearly shows that Judge Dutton construed these decisions precisely as we do. A mind so acute and well stored with legal definitions as was his, must have understood that seisin in law in such connection is always used in contra-distinctión to a seisin in fact or in deed, and imports a right to the possession. In 1 Simmons & Stewart, 260, it is said that “ seisin in deed is actual possession of the — 191 — freehold and seisin in law is a legal right to such possession.” Blackstone, in the citation previously made, makes the same distinction and gives the same definition to the term “seisin in law,” and adds that “ therefore a man shall not be tenant by the curtesy of a remainder or reversion.” In 2 Bouvier’s Law Dictionary, p. 509, it is said that “ seisin in law is a right of immediate possession,” and this we think is the precise idea that Judge Dutton intended by the same expression. Our conclusion is that there is nothing in the decisions referred to, properly construed, to compel us to occupy the isolated position of holding that there can be curtesy in a remainder expectant upon a prior undetermined freehold. It may be suggested that, if we discard actual seisin and still require seisin in law, we shall still be opposed to the great weight of judicial authority. This may be so ; nevertheless, in holding a constructive seisin or seisin in law sufficient we are not without strong support. Lessee of Merritt v. Horne, 5 Ohio St., 307; Watkins v. Thornton, 11 id., 367; Wass v. Bucknam, 38 Maine, 356; Day v. Cochran, 24 Miss., 261; Stephens v. Horne, 25 Mo., 349; Stoolfoos v. Jenkins, 8 Serg. & Rawle, 167. If curtesy was to be favored it would seem natural and reasonable perhaps, having abolished the common law requirement of actual seisin, to do away with constructive seisin also as a requisite to support the estate ; but jurists agree that it is not to be favored. Chancellor Kent says the extent of the law of curtesy may be justly complained of. The obvious reason is that it gives to the husband what would otherwise belong to the heir of the wife. It has no moral foundation to rest upon, and hence the spirit and tendency of the times is toward its abolition rather than its extension. The legislature of this state twelve years ago abolished it as to all subsequent marriages, and several other states have done the same thing. We advise the Superior Court to render judgment for the plaintiffs. In this opinion Andrews, C. J., and Beardsley, J., concurred.