Wilson v. Arentz

RodMAN, J. The defendant assigns for cause of demurrer ; 1. That the wife of plaintiff is not joined with him as a co-plaintiff. The answer to this is found in the opinion of the 'Court in Williams v. Lanier, 1 Busb. 30, where it is said: “ For these reasons it has been settled, for upwards of a century, that the latter (the reversion or remainder man) may bring case in the nature of waste, for the injury to the inheritance ; and that the former (the particular tenant) trespass groare clausum fregit, for the injury done to him.” In that case the particular tenant was a tenant by the courtesy initiate, and he was held barred by the statute of limitations. For an injury done to the inheritance his wife must have joined in the suit; for a trespass to the possession, he could sue alone. As the plaintiff has a right to sue alone, there is no necessity (to consider the effect of C. C. P., sec. 62, in such a case. 2. That the complaint does not show that the plaintiff was entitled to the possession of the land. We pass by the exception that the complaint does not positively show that the children were born after the marriage, because it is a mere matter [673] of form, which might have been amended, and was not assigned as a canse of demurrer in the Court below. The complaint appears to state every thing necessary at common law, to make the plaintiff a tenant by the curtesy initiate. 1. Marriage in 1864 ; 2, the birth of living children ; 3, the seizen of the wife under the deed from John Rabb to her in 1864. It is suggested that the act of 1848, Revised Code, chapter 56, section 1, deprives the husband of his curtesy. But the contrary has been decided. Houston v. Brown, 7 Jones 161. As the plaintiff in this case was married in 1842, he comes within the meaning of that act. Again, it is said that as by the act of 1848, the plaintiff can not lease the land, he cannot recover the possession, at least,unless his wife is a co-plaintiff. Probably the disability to-lease might have been a difficulty in the old action of ejectment, though probably the Courts would have moulded the fiction of a lease in such cases, to meet the demands of justice. But if the plaintiff is entitled to the possession, the inability to lease is no bar to his recbvering it; and if he is tenant by the curtesy initiate, as it has been held that he is, he must necessarily be entitled to the possession, there being no other immediate estate. The record in this case fails to set forth that any judgment was rendered below. Pee CuRiam. The case is remanded to-be proceeded in,. &c., but by reason of the defect mentioned, neither party will recover costs in this Court.