Day v. Cochran

Mr. Chief Justice Smith delivered the opinion of the court. This was an action of ejectment tried in the circuit court of Adams county. A special verdict was returned by the jury, in which the following facts are found." Adam Bower, who was the owner of the premises in controversy, died in 1834, leaving three daughters, Mary, Martha, and Sarah. Mary was married to Vm. Haile, Martha to Wm. M. Phipps, and Sarah to John Gibson. In 1835, Holton and Barlow went into possession of the premises under an agreement for title made with these parties ; and subsequently, in the same year, received a deed executed by Haile, Phipps, and Gibson, and signed by their respective wives. By this deed, the interest or estate held by these parties, in virtue of their respective marriages, was conveyed to Holton and Barlow; but, as to their wives, the deed was inoperative. In September, 1838, Haile, the husband of Mary, died; and in the fall of 1839, she intermarried with Charles Rice. In 1839, Phipps, the husband of Martha, died; and she was a widow at the date of the trial. On the 19th February, 1840, an action of ejectment was instituted in the circuit court of the United States, at Jackson, by Charles Rice and his wife Mary, and Martha, the widow of "William M. Phipps, deceased, for the recovery of the premises in question, against the Agricultural Bank, and other persons who claimed under mortgage from Holton and Barlow. Gibson and wife did not join in this action, and verdict and judgment were rendered for the plaintiffs at'the November term of said court in 1843. The cause was removed thence, by writ of error, to the Supreme Court of the United States, in which the judgment was affirmed at the January term thereof in 1846. The execution of this judgment was suspended by an injunction, until the May term of the said circuit court in 1847, when the injunction was dissolved. Process having issued on this judg-' ment, it was executed on the 21st of May, by putting L. M. Day, one of the plaintiffs in error, into possession of two undivided thirds of said property; the other third remaining in possession of said Holton and Barlow and their mortgagees, who, from the date of the deed from Haile, Phipps, and Gibson, claimed a fee in the whole of the land thereby attempted to ab — 273 — conveyed, down to the time when the writ of possession was executed, by putting the s'aid Day into possession, who still retains it. In 1840, but before the institution of the suit, Martha, the widow of Phipps, executed a quitclaim deed of her one third of the property to Mary, the wife of Charles Rice. The demise in ejectment was laid on the 1st December, 1839. An attachment, at the suit of Mark Isod, use, &c., against said Rice, was, on the 18th of March, 1846, levied upon the interest of the latter in the property in controversy; that interest was supposed to be the right of tenancy by courtesy in two thirds of the property acquired by Rice, in virtue of his marriage with Mary Haile. Rice and his wife Mary were alive at the date of the trial, and had children of their marriage born before the levy of the attachment. Judgment in the attachment suit for $1,147.89 was entered against Rice at the November term of the circuit court of Adams county in 1846. A venditioni exponas issued upon the judgment; and the supposed interest of Rice was, on the 5th of April, 1847, sold to Robert Cochran, the plaintiff in the action below, for the sum of $500. A deed from the sheriff of Adams county to Cochran was duly executed, which purported to convey to the purchaser “ any and all interest which said Rice had in the said property at the date of said levy.” Upon the special verdict, establishing these facts, judgment was rendered for the plaintiffs in ejectment.; and the case is brought before us by writ of error. For the plaintiffs in error, it is insisted, that Rice, at the time of the levy of the attachment, possessed no interest or estate in the premises which was subject to seizure and sale under execution. If this position is sustained by the law arising upon the facts, the judgment was erroneous, and must be reversed, as the title of the plaintiffs’ lessor rests exclusively upon the sale and conveyance made by the sheriff to him. It becomes, therefore, necessary to determine what was the character of the interest or estate, if any, which was vested in Rice at the date of the levy of the attachment, and whether such — 274 — interest, if found to exist, was the subject of seizure and sale under execution. The interest which a man has in the real estate of his wife, as tenant by the courtesy initiate, is a well defined legal estate. It is a freehold estate, which will exist after the death of the wife, for the lifetime of the husband, if he shall be the survivor. 1 Cruise, Dig. 146; 4 Kent, Com. 29. From the facts recited in the verdict, there can be no doubt that if Rice, at the time of the levy of the attachment, possessed any interest in the premises in controversy, it was that of a tenant by the courtesy initiate; and we have no hesitation in saying that, like all other certain and vested legal estates, it was subject to be attached and sold under execution. It remains, then, to be ascertained, whether such an interest was vested in Rice at the date of the levy of the attachment. Tenancy by the courtesy is an estate for life created by the act of the law. It occurs where a man marries a woman who is seized at any time during coverture of an estate of inheritance, and has by her issue born alive, and which might by possibility inherit the same estate, as heir to the wife. By the common law, four things were requisite to the existence of this estate, namely, marriage, actual seizin of the wife, issue, and death of the wife. The estate is initiate on issue had, and consummate on the death of the wife. 4 Kent, 28. In this case, the marriage, and birth of issue are admitted; but it is insisted, that it is distinctly shown, by the facts of the verdict, that Mrs. Rice never had, at any time during the cover-ture, and prior to the levy of the attachment, actual seizin of the land in dispute. Hence it is contended that the marital rights of Rice had not then attached. The deed of conveyance from Haile, Phipps, and Gibson, under which Holton and Barlow claimed title and held possession after Haile’s death, did not work a discontinuance of the inheritance possessed by the wives of the respective grantors in the premises conveyed. Holton and Barlow acquired no seizin as against the reversionary interests of the femes covert, nor any right of possession as against them. Upon the death of Haile, — 275 — Mrs. Rice had, by the express terms of the statute, (Hutch. Code, 615,) the right to enter upon the premises, and to hold and enjoy them, according to the extent of her title. The title of Mrs. Haile and Mrs. Phipps to their respective third parts of the premises being perfect by the descent cast upon them, and which, being unaffected by the said conveyance, upon the death of their husbands, remained legally seized of the premises, having a present right of entry into the same. But it is said, that the possession of Holton and Barlow, which was continued from the time they went into possession under a contract to purchase, until the execution of the writ of possession, was hostile to their right, and, therefore, adverse. Hence it is contended that, although the legal seizin may have been in Mrs. Rice, yet, as there was no entry or pedis possessio taken of the premises, Rice’s courtesy never vested. This conclusion is doubtless correct, according to the strict rules of the common law, and the doctrine recognized in several of the States, if the possession of Holton and Barlow were in fact and law adverse. These parties, as we have seen, went into possession originally under a contract for the purchase of the property, and afterwards took a deed in fee simple, but which in fact conveyed only the interest of Haile, Phipps, and Gibson, who had but a life estate in the premises. Haile and Phipps dying, they continued in possession of the whole of the property, still claiming it as their own. But we apprehend that this does not amount to an adverse possession, much less could it be construed into a disseisin of the reversioners, unless they had elected to consider it so. It is well settled that, where a party has gone into possession of lands under a lawful title, and, after his right has expired, holds over, his possession, thus continued, will not be regarded as adverse to the party entitled to the reversion. “ For being once in by a lawful title, the law, which presumes no wrong in any man, will suppose him to continue upon a title equally good.” 2 Black. Com. 149, 150; Varick v. Jackson, 2 Wend. 166; Jackson v. Cairns, 20 J. R. 301; Doe v. Hall, 2 Dow. & Ry. 38. Holton and Barlow, holding over after the death of Haile and Phipps, became tenants — 276 — at sufferance. Their possession was not tortious as regarded the true owners of the reversion, and was consequently not adverse or hostile to their right. 2 Black. 150; 2 J. R. 301. If, upon the general law, there could be any doubt that the possession in this case was not hostile, it is believed the statute above referred to dispels it. It provides that no feoffment, fine, or other act, suffered or performed by the husband only, during coverture, of any lands, tenements, or hereditaments, being the inheritance or freehold of his wife, shall work any discontinuance thereof, or prejudice or affect the said wife or her heirs; but the wife, or her heirs, may, after the death of the husband, lawfully enter into such lands, tenements, and hereditaments, and hold and enjoy the same, according to her or their title. Hutch. Code, 615. Certainly this language is sufficiently explicit. It precludes the parties who hold possession of the premises, under the deed from Haile, Phipps, and Gibson, from setting up that possession as adverse to the title of Mrs. Rice. Assuming, then, that the legal seizin was in Mrs. Rice at the death of Haile, and that the premises were not held adversely, was it necessary that an actual entry should have been made, or that Mrs. Rice should have been seized in fact and in deed, in order to have entitled Rice to his courtesy ? As above remarked, actual seizin, or seizin in fact, was essential, according to the strict rules of the common law. This principle, doubtless, grew out of the ancient law of disseisin, by the operation of which the tenant of a freehold who was disseized was thereby actually divested of his estate in the land, and that estate reduced to a mere right. So that the disseizor, dying, could not be counted as an ancestor; for, having but a bare right of entry, and not seizin, he was not a root or stock whence an inheritance by right of blood could be derived. 2 Bl. Com. 209. Hence, say the court in Davis v. Mason, 1 Peters, 507, “ As it relates to the tenure by courtesy, the necessity of entry grew out of the rule which invariably existed, that entry must be made, in order to vest a freehold; and out of that member of the definition of the tenure by the courtesy which requires that issue should be had capable of inheriting.” The reason for the rule does not, it is apprehended, exist in this State. — 277 — Even in England, the courts have been struggling for more .than a century to untrammel themselves from the rigor of the ancient law, and have essayed to sustain the right of the husband to his courtesy in the estate of his wife in every case in which there was not an adverse possession. Thus, in De Grey v. Richardson, 3 Átk. 469, it was holden that' the possession of a lessee under a lease reserving rent was an actual seizin of the husband, so as to entitle him to a life estate in the lands as tenant by the courtesy, although he neither received nor demanded rent during the life of his wife. Also, in the case of Stirling v. Penlington, cited by Chancellor Kent in Sellick v. Jackson, in 8 J. R. from 3 Eq. Cases, Ab. 730, where the wife was entitled to an undivided third part of the premises as the heir of her brother, but was kept out of possession during the continuance of the coverture by the other tenant in common, who claimed possession for the brother of that third of the estate, upon the supposition that he was still living, it was held there was a good constructive possession to entitle him to a life interest in that part of the estate as tenant by the courtesy. And it is now the settled law in England, that an entry in all cases is not necessary to an actual seizin, or seizin in deed for, as in the case of De Grey v. Richardson, if the land be in . lease for years, courtesy may be without entry or receipt of .rent, the possession of the lessee being the possession of the husband and wife. 2 Wend. Bl. 127, note. The law in regard to the tenure by courtesy has been still more liberalized in the State of New York, where it has been holden that, if the wife .be the owner of wild, uncultivated lands, not held adversely, she is deemed seized in fact, so as to entitle her husband to his right of courtesy, although there has been no entry or pedis possessio taken of the same. Jackson v. Sellick, 8 J. R. 271. A constructive seizin in fáct being all that the law requires; - and certainly a more stringentrule would not be applied in this State. The case at bar, we think, comes completely within this rule. Mrs. Rice was seized in law of the premises, and they were not held adversely. Indeed, Holton and Barlow, after the death of Haile, held as tenants at sufferance to her. The relation of — 278 — landlord and tenant existed between them; hence their possession was her possession. Being constructively seized in fact, an actual entry was unnecessary in order to entitle Rice to his courtesy in the premises. We, therefore, think the judgment of the circuit court correct, and accordingly affirm it.