8 Neb. 520 | Neb. | 1879
On the twenty-first day of January, 1876, Peter Eorbes filed his petition in the district court of Douglas county, alleging “that on the-day of July, 1875, he became and ever since has remained, the owner of the legal estate for the life of one Milan Hunt as tenant by the curtesy, and which estate still con
The defendants answered the petition, alleging that “ on or about the twentieth day of September, 1872; said defendants, Sweesy and Culbertson, entered into possession of said property under a lease in writing of about that date, made, executed, and delivered in due form of law by Elizabeth Hunt, the then owner of the fee simple of said real estate, but now deceased, whereby said premises were leased and demised to the said Sweesy and Culbertson for the term of five years next after that date; that on or about the first day of May, 1873, and before the commencement of this suit, said Sweesy and Culbertson leased and demised said premises to Tyler for the remainder of said term of five years, and that Tyler entered into possession of said premises under said leasing, and has ever since remained in possession thereof thereunder.”
During the pendency of the action in the district court the plaintiff died, and the cause was revived in the name of Marion E- Eorbes as administratrix.
In September, 1878, the-case was submitted to the court without the intervention of a jury, -and the court found “that the defendants, at the time of the commencement of this action, had possession of the real estate described in the petition, under and by virtue of
The plaintiff filed a motion for a new trial, which was overruled and judgment rendered on the finding. The plaintiff brings the cause into this court by petition in error.
The only question to be considered is — did the sale, confirmation, and deed vest in the plaintiff any right in the premises in question during the existence of the lease ?
An estate by curtesy at common law is defined to be that estate to which a husband is entitled upon the death of his wife, in the lands and tenements of which she was seized in possession, in fee simple or in fee tail during the coverture; provided they have had issue born alive and possibly capable of inheriting her estate. 4 Kent Com., 28. Four things are requisite at common law to an estate by the curtesy, viz.: marriage, actual seizin of the wife, issue, and death of the wife. The husband’s estate was initiate on issue born, and consummate on the death of his wife.
Our statute provides: “When any man and his wife shall be seized in her right of any estate of inheritance in lands the husband shall, on the death of his wife, hold the lands for his life as tenant thereof by curtesy; Provided, That if the wife, at her death, shall have issue by a former husband to whom the estate might descend, such issue shall take the same, discharged from the right of the surviving husband to hold the same as tenant by curtesy.” Gen. Stat., 280.
Section two of the act “relating to the rights of
The wife was classed with infants and persons of unsound mind, in regard to her capacity to enter into contracts. 2 Blackstone Com., 292. Not that she was less capable of contracting by reason of her marriage, but by the common law the wife, so far as control of her property was concerned, was but little better than a slave; the husband acquired her personal property, the rents and profits of her estate, the custody of her person, and the right to her services. She possessed nothing, and could possess nothing, independently of her husband. The law therefore deprived her of the capacity of contracting, because she had nothing in relation to which she could contract, consequently her contracts in relation to leasing or conveying her estate were absolutely void, and the only mode in which she could join in the sale, settlement, or incumbrance of her estate was by the proceeding by fine and common recovery. 2 Blackstone
But to entitle the husband to an estate by the curtesy the wife must have been seized in fact as well as in deed, and not merely a seizin in law. This seems to have grown out of the practice of livery of seizin and, as is said by the supreme court of the United States in Davis v. Mason, 1 Peters, 503, as livery of seizin has become unnecessary, so actual seizin of the wife should be abandoned. But in the case at bar, the wife was in actual possession of the premises by her tenants, the defendants in this action.
In this state, under our statute, issue by the wife is not necessary to complete the right to an estate by curtesy. But the husband’s rights during coverture to the use, care, or control of his wife’s separate estate have entirely ceased to exist. She may exercise the same control over her estate after as before marriage; and she may, by a conveyance of her estate, entirely defeat his right to an estate by curtesy. So if she lease her estate or any portion of it, his right to an estate by the curtesy in the portion leased is suspended during the existence of the lease, and he takes her estate subject to the contracts which she has made during her life-time in 'relation to the same. Where, however, she dies- without having made any disposition of
Judgment aeeirmbd.