8 Paige Ch. 643 | New York Court of Chancery | 1841
This is not an ordinary creditor’s bill to reach the equitable interest of the husband in this fund, after the return of an execution at law unsatisfied ; as it contains none of the averments required by the rules of this court to be inserted in such bills. The whole equity of the bill, therefore, depends upon the fact that the complainant had a legal lien upon the husband’s interest in the real estate of his wife previous to the sale under the decree ; and that the effect of the sale was to transfer the lien of the judgment from the husband’s legal estate in the land to his interest in the fund produced by the sale, to the same extent, ihe bill is defective, however, in not stating the time of the commencement of the suit in chancery by Putnam against the defendants and others. For if that suit was subsequent to the recovery of the complainant’s judgment, the lien of the judgment upon the husband’s interest in the land was not divested by the sale under the decree. And the complainant’s remedy, in that case, would be to proceed and sell the husband’s interest in the land under the judgment.
That, however, is a mere technical slip in drawing the bill, which would of course be cured by an amendment; as there is no doubt of the fact, that the complainant’s judgment was obtained during the pendency of that suit. The lien of the judgment was therefore divested by the sale un
The husband, by virtue of his marriage, acquires the legal title to the rents and profits of his wife’s real estate during their joint lives. To that extent, the judgment of the complainant gave him a preferable claim upon the fund, without regard to the question whether he had such a seisin previous to the sale under the decree as to have entitled him to a life estate in the land, after her death, as tenant by the curtesy. But in addition to that, I am satisfied he had such a seisin in this case, of two thirds of his wife’s share of the premises, as to make him a tenant by the curtesy initiate; so as to entitle him to a continuance of his estate in those two thirds during the whole period of his own life, in case he survived his -wife.
It was unquestionably the law of England, at an early day, that to entitle the husband to an estate for life in his wife’s real estate, after her death, as tenant by the curtesy, he must have been actually seised of the land in right of his wife at some time during the coverture. (Coke Litt. 29, a.) That principle undoubtedly arose out of the ancient law of disseisin ; and the principle of the ancient common law, that the disseisin of the tenant of the freehold actually divested his estate in the land, and reduced it to a mere right. Hence, even the English courts have been struggling for more than a century to sustain the right of the husband to his curtesy in the estate of his wife,
In the case under consideration, I think the bill shows a sufficient constructive possession, in the husband, of his wife’s share of the land, previous to the sale under the decree, to give him a vested estate therein as tenant by the curtesy initiate ; except as to that third thereof in which the mother was entitled to dower. The recovery in ejectment was of itself equivalent to an actual entry upon the land, or at least to an attempt to enter thereon ; so as to give him a constructive seisin in deed, sufficient to have entitled him to hold the estate as tenant by the curtesy, if his wife had died before the actual execution of the writ of possession. But if that was not sufficient, the decree of this court settling the rights of the several parties to the house and lot in question, and directing a sale thereof for the purpose of partitioning their several rights, certainly was equivalent to the taking of an actual possession by the husband of his wife’s undivided share of the premises, subject to the right of dower; as to which right Putnam was held to be entitled to the possession as tenant in common. The lien of the complainant’s judgment, upon the interest of the husband as tenant by the curtesy initiate,
I think, however, the objection is well taken, that a preliminary injunction was not necessary or proper in this case, to protect the equitable lien of the complainant upon the husband’s interest in this fund; even if this bill was necessary to enable the complainant to reach that interest. In the case of Dyckman v. Kernochan, (2 Paige’s R. 26,) this court decided that an application, by a party or privy to a proceeding in this court, to stay such proceeding, must be directly to the court itself, in the matter of the suit or proceeding, for an order to that effect; and that an officer out of court had no authority to allow an injunction for that purpose. Here the complainant was the party against whom the proceeding was instituted, to compel him to pay over the money in his hands, as the solicitor and guardian ad litem of the petitioners. And if the nature of his claim was such that it could not be fully and effectually disposed of on the petition of these defendants, his proper course was to show that fact upon the hearing of the petition ; and to ask for an order suspending the decision as to so much of the fund as was equal to the value of the life estate of the husband therein, upon the principle of life annuities, until the decision of his claim against the husband could be settled by the decree of this court upon the bill which had been filed for that purpose ; or that the order to pay the fund into court should be without prejudice to his claim upon that part thereof which was subject to the lien of the judgment. The effect of this proceeding by injunction, if it can be sustained, is not only to prevent the petitioner from obtaining an order to pay into court that part of the fund, but also to stay the application as to that part which it is admitted belongs exclusively to the wife.
For these reasons, the injunction must be dissolved.