72 Ky. 679 | Ky. Ct. App. | 1873
Lead Opinion
delivered the opinion or the court.
In the year 1854 Jonathan E. Potts died intestate, in the county of Union, the owner in fee-simple and in the possession of a tract of four hundred and nine acres of land. He left surviving him his widow, Irene Potts, and five children, the most of whom were infants. His daughter, Maria Potts, intermarried with Willis E. Carr, who died in 1856. She had by Carr two children, the present appellants. In 1859 Mrs. Carr&emdash;formerly Maria Potts, the mother of the appellants&emdash; married the appellee Givens, and had by him one child, that died in infancy. In August, 1861, Mrs. Givens died, and shortly afterward, and in the same year, Irene Potts, the
This court has always adhered to the doctrine of the common law on this subject, and required an actual entry upon the land by the husband during the marriage, or seizin in fact by the wife or some one for her use or that of her husband, in
'Without a careful analysis of the authorities with reference to this tenancy, the legal conclusion from the facts appearing in this record might result, as is maintained by counsel for the appellants, in denying to appellee the right to curtesy. In the case cited by Coke it clearly appears that there was no seizin by the wife and no entry upon the land by the husband, nor is there any fact from which it can be inferred that possession was held for their use by another.
The children of the intestate, some of whom remained on the land after his death, having derived it by descent, held as
The possession of one parcener is at common law the possession of the other, and the entry by one is held to be an entry for all, for the reason that unity of possession exists, and can only be severed by partition or alienation of the interests. (2 Blackstone, 190; 1 Cruise on Real Property, 383.) If this be so, and the possession by the mother does not affect their rights, the continued occupancy of the land by some of the coparceners during the life of Mrs. Givens would give her husband curtesy. “ Curtesy and dower are incidents to estates held in coparcenary.” (1 Cruise on Real Property, 385; 1 Bishop on Married Women, 304.)
In the case of joint tenants such an estate could not be created at common law by reason of the doctrine of survivor-ship. It is urged, however, that the widow of Jonathan Potts held and cultivated all the land during her life, and that she alone had the actual possession. It does appear that she held it by the consent or acquiescence of the adult children, and maintained the infant children out of its proceeds. This holding made the widow a tenant in common with the children, including her daughter, Mrs. Givens. There had been no assignment of dower so as to sever their interests, and although the daughter had a greater estate in the land than the mother (the latter having only a life-estate in one third of it), still the only unity required to make them tenants in common was that of possession. The mother entered upon the land, or retained the possession after the death of her husband, recognizing
In Gfreenleaf’s Cruise on Real Property (vol. 1, p. 400) it is said that estates held in common are subject to curtesy, and in support of this position, with a view of showing the character of possession and seizin necessary to give curtesy, he says, “A died, leaving a widow, son, and daughter; the widow entered upon the estate as tenant in dower of one part, and as tenant in common with her son of another part. The son died and the daughter inherited, ai:d married, leaving issue and her husband surviving. It was held that the seizin of the mother, she being tenant in common with the daughter, was the seizin of the daughter sufficient to make the husband tenant by the curtesy.” In Bishop on the Law of Married Women (vol. 1, p. 504) it is said, “ If the estate of the wife is a tenancy in common, the husband is entitled to curtesy, and the case of this estate is also an exception to the rule that there must have been an actual seizin in the wife; for if the tenant have had seizin, that will be sufficient as in tenancy in common; the possession of one tenant is considered the possession of his co-tenant.” In Hilliard on Real Property the doctrine is thus recognized: “ So estates in common are subject to curtesy, and the possession of one tenant in common is regarded so far that of the other that the latter shall be tenant by the curtesy.” (Yol. 1, third ed., 593; 1 Washburn on Real Property, 161; Clancy on Married Women, 181.)
All the common-law authorities harmonize on this subject; and, recognizing the possession in such cases as common to all,require that actions shall be brought in the name of all for injuries to the common estate. If held otherwise, every tenant in coparcenary or tenant in common must have actually resided on the. land or have placed it in possession of a lessee to create
The division having been made between the heirs, it will not be necessary to disturb it by reason of this judgment. The commissioner should be directed to ascertain how much of the land allotted to the heirs of Mrs. Givens, and occupied by the husband as tenant by the curtesy, should be made
For the reasons indicated the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.
Rehearing
To THE PETITION OP APPELLANTS’ COUNSEL POR A REHEARING JUDGE Pryor delivered the following response:
We have considered carefully the suggestions of counsel made in an able brief on the original hearing, as well as in the petition for a rehearing, and although the reasons assigned for a reversal are persuasive, still we are constrained to adhere to the original opinion, sustained as it is by all the authorities on the subject. It is conceded that the mere right to possess the land on the part of the wife is not sufficient to give curtesy, but there must have been an actual possession. This is the doctrine contended for by counsel, and about which there is no controversy. The question of difference is as to what constitutes actual possession. Where the land is held in coparceny or in common, and one of the tenants is in possession (the wife being a tenant), this gives to her the possession; not the right to possess, but the actual possession. This is the common-law doctrine as announced by Cruise, Washburn, Hilliard, Bishop, Clancy, Blaekstone, and all the elementary writers on the subject without an exception. It is said, however, that, although this doctrine is found in the text, the only authority to sustain it is the case of Sterling v. Penlington. This may-be true; but suppose these elementary authors in asserting the doctrine had failed to refer to any reported case, we still would have
In the case cited by counsel, where the father dies leaving a daughter not in possession of the land descending to her, the husband of the daughter immediately on the death of the father starts for the land in order to obtain the possession, and the wife dies before he reaches it, in such a case we agree that no curtesy exists. If, however, we add to this supposed case the additional fact that the land at the death of the father descended to the son and daughter, and the son was in the possession, then the husband of the daughter would have curtesy, for the reason that they held as parceners, and the possession of one is not the right only of all to possess, but the actual possession of all; or if they are not parceners, but tenants in common, the same rule applies. This view is taken by all the authors referred to, and is based ■ upon the doctrine creating these tenancies — namely, unity of possession. So, regarding the parties in this case as either parceners or tenants in common, the husband has his curtesy.
Petition overruled. •