Davis v. Darrow, 12 Wend. 65

Davis v. Darrow

12 Wend. 65 | N.Y. Sup. Ct. | 1834

By the Court,

Nelson, J.

At common law the widow of an alien husband could not be endowed. 1 Co. Litt. 572, (31, a 1.) Bacon’s Abr. tit. Alien, 136, n. 4 Kent’s Comm. 37. 1 Cowen, 89. 8 id. 713. By the revised statutes, 1 R. S. 740, § 2, the widow of an alien, who at the time of his death was entitled by law to hold real estate, if she be an inhabitant of this state at that time, shall be endowed of such estate in the same manner as if her husband had been a native citizen. This is a new provision, taken from the law of the case in 1st and 8th Cowen, above referred to. In the case now under consideration, there was no statute in existence at the time the husband purchased, with the terms of which he had complied, entitling him to hold real estate; nor was such purchase affirmed by any subsequent statute: vide the case of Mick v. Mick, 10 Wendell, 379, in which the statutes on this subject are fully examined by the chief justice.

But the defendant derives his title from, and holds the premises under the husband of the plaintiff; and it has been *67repeatedly determined in this court, that a tenant or defendant in such condition is estopped from denying the seisin of the husband. 6 Johns. R. 290. 7 id. 278. 9 id. 344. 1 Caines, 185. 2 Johns. R. 119. These cases are full and direct to this point. In Hitchcock v. Harrington, 6 Johns. R. 290; Kent, C. J. cites Taylor's case, in which it was held, that if a tenant for life or years made a feoffment in fee and died, and his wife brought dower against the feoffee, he could not plead that the husband was not seised. The principle is just and sound, inasmuch as the defendant derives his claim to, and possession of the premises from'the husband of the plaintiff.

New trial granted.