5 Rawle 160 | Pa. | 1835
The opinion of the court'was delivered by
The rent in question being of the nature of a rent charge, the plaintiff claims a right to receive it as tenant by the curtesy. That a husband under a concurrence of certain circumstances, may become tenant by the curtesy of such estate, cannot be questioned. Co. Lit. 29, a. These circumstances according to Littleton, sec. 35, and Lord Coke, Co. Lit. 30, a. are marriage, seisin of the wife, issue and death of the wife. There seems to be no difficulty presented in this case, in regard to any of these things, except that of the seisin of the wife, or the husband in her right, during the coverture.
It is ndt necessary however, I apprehend, to entitle a husband to claim by, the curtesy in this state, that there should have been, what is considered in England an actual seisin of the wife or the husband during the coverture. It is sufficient if she were invested with the title to an estate of inheritance, and had seisin of the freehold thereof in law, by having a right to demand and receive the rent accruing from the enjoyment of it, either by a tenant at will, or for a term of years, if out on lease; or otherwise to demand and recover the immediate possession thereof; or as the late Mr. Justice Duncan expresses it in Stoolfoos v. Jenkins, 8 Serg. Rawle, 175, “if there was, a potential seisin or right of seisin.” This doubtless would be sufficient, according to the rule, which has obtained under our intestate law, regulating the descent of real estate in Pennsylvania, to enable the surviving issue of the wife after the death of the same, to claim and have the estate as her heirs. Seisin in fact on the part of a parent during his life is not requisite, to entitle the issue of such parent-after his death to claim the real estate to which the parent had a title in fee, as his heirs. Ownership without seisin, not only regulates the descent of real estate here,-but likewise gives the right to dispose of the same, either by deed or will. This also seems to be the law of Connecticut, according to the cases of Bush v. Bradley, 4 Day, 298, and Kline v, Beebe, 6 Conn. Rep. 494, 499. But even in England, where the estate consists of a rent as in the present
And as it is necessary in case of a legal estate, that the wife should be seized of the freehold, as well as invested with the right to the inheritance, to entitle the husband to claim as tenant by the curtesy, so it is equally necessary in the case of an equitable estate, that she should be equitably seized of the freehold as well as entitled to the inheritance. But a bare naked seisin in law of the freehold for the use of a third person, is not regarded as a seisin in equity, which governs in cases of trust; because there the cestui que trust or use, is considered the true owner of the freehold and the only person seised of it; and a wife in such case being the trustee has no property or interest whatever in the freehold, and if not seised in fact, she can*eertainly have no seisin imputed to her in respect to ownership. Besides, without ownership on the part of the wife, it is obvious the husband can have no good claim by the curtesy, for his right in such case is a mere continuation of her right: and hence the writ de partitione facienda lies against the husband of a co-parcener, who is tenant by the curtesy, because he continueth the estate of coparcenary. Co. Lit. 174, b. 175, a. And indeed the weight of authority is decidedly against the claim of the husband by the right of curtesy to the reversion in fee of the wife, expectant upon an estate for life which endured beyond her death, even where she might be said to have had an interest in the estate for life, by being in the receipt of a rent reserved on it to her and her heirs. In Keilway 104, b. it is said, that if a man take a wife seised of a reversion on a lease for life, whereupon a rent was reserved, he may be-tenant by the curtesy of the rent, but not of the reversion. And Perkins in sec. 467 makes a quere, whether he shah in such case have either the rent or the reversion by the curtesy. Mr. Hargrave notiqes-this quere of Mr. Perkins in his note (7) to Co. Litt. 29, a. without expressing any opinion of his own upon it: but Mr. Greening, editor of the last edition of Perkins, gives it as his opinion, that thé husband shall not be tenant by the curtesy of either the rent or the reversion. And this agrees with what Sir Edward Coke has laid down in regard to the right of the wife to dower out of the real estate of the husband after his decease; which having for its basis a moral as well as legal obligation on the part of the husband to pro
. Now in the case, under our consideration it is manifest that the wife of the plaintiff, during the whole of her coverture, was at most only a naked trustee of the freehold, and if' seised at all, was seised of it as such trustee merely, without any beneficiary interest in it whatever; and being so, according to the principles which have been mentioned, and which seem to be well settled both at law and in equity, I do not see how it is possible for the plaintiff to recover. The case of Dethrick v. Bradburn, 2 Sid. 110, so much relied on by his counsel, has very little if any resemblance to the present: for there the rent was granted in the first instance to the wife dum sola and her heirs for their only use; the payment of which, as is in every grant of the kind, was. to commence at a future day; only that it was postponed to a certain day next after the death of J. S., an event uncertain as to the day when it would happen, but still nothing more certain than that it would sooner or later take place, instead of fixing on a future day certain, without reference to an event that must happen, though uncertain as to the day when that would be; so that from the very commencement of the grant, which was of the time present in its terms, it was for the exclusive benefit and use of the wife and her heirs: there was no particular estate for life or of freehold carved out of it, to be enjoyed by any other person before it was to come to the use of the wife and' her heirs, but the whole entire rent was granted immediately to h§r in fee; she may therefore be said in the words of the law habere hcereditatem, that is to have been seised of the freehold as well as the inheritance, so far as the nature of the estate would possibly admit of it. But in the case before us, the wife of the plaintiff had at most only a reversion or remainder in fee in the rent, expectant upon the determination of an equitable estate for life belonging to another person who out-lived her. It may also be observed that the case in Siderfin does not appear to have been decided by the court: it is only the opinion of Chief Justice Glyn, that is given in favour of the husband’s right to the rent as tenant by the curtesy, which however I am not disposed to controvert.
The judgment is affirmed.