22 N.H. 491 | Superior Court of New Hampshire | 1851
The principal question arising'in this case, is as to the effect of the Statute of Limitations upon the demandant’s right of action. It appeared that the demanded premises were set off by a committee of partition, appointed by the Court of Probate, to Mary Poster, formerly Mary Eastman, the mother of the demandant, as her share of the estate of her father, Samuel Eastman, deceased, on the 14th of May, 1814. Mary Poster was then the wife of Frederick Poster, by whom she then had one or more children. Frederic c Poster died in 1834, and his wife in 1836. They had six children, whose rights are said to be now vested in the plaintiff.
The defendant proved, that in 1817, one Morrill was in possession, claiming to be the owner of the demanded premises. .He conveyed the same by deed, dated July 3, 1817, to one Marshall, who entered and occupied, claiming title, till April 30th, 1847, when he conveyed to the tenant, who has since remained in possession. The tenant claims that he has a perfect title by thirty years undisturbed and peaceable possession. The demandant a leges that his right is not barred, because at the time when the disseisin occurred, in 1817, Mrs. Poster was a feme covert, and up to 1834 her husband had an estate for life in the premises and she had no right of entry until his decease, and consequently no right of action till then, and that since that time twenty years have not elapsed.
Under the Statute of Limitations, which was in force in this State before the Revised Statutes, it must be considered settled, that the statute did not affect the right of a remainderman or '
NAright of entry or action aeSped to, or vested in the heirs of tneLwife during the continuandjpof an estate by the curtesy. Jackson v. Schoonmaker, 4 Johns. Rep. 390.
But th^party entitled is npJ3»arred, until the usual period of limitation aftBr the termimp^Sjrnf the life estate. Heath, v. White, 5 Conn. Rep. 228 ; Witham v. Perkins, 2 Greenl. Rep. 400.
If, then, the husband had, in this case, an estate by the curtesy, or any interest in the land which would entitle his wife, who survived, to be regarded as seised only in remainder or reversion, she and her heirs would have the full period of twenty years after the death of the husband, to commence their action.
To constitute a tenancy by the curtesy, the death of the wife is one of the four things required. The estate of the husband is initiate upon the birth of issue. It is consummate on the death of the wife. 4 Kent’s Comm. 29 ; Co. Litt. 30, a.
By the intermarriage, the husband acquires a freehold interest, during the joint lives of himself and his wife, in all such freehold property of inheritance, as she was seised of at the time of marriage, and a like interest vests in him in such as she may become seised of during the coverture. The husband acquires jointly with the wife, a seisin in fee in the wife’s freehold estates of inheritance, the husband and wife being seised in fee in right of the ivife. Gilb. Ten. 108; Co. Litt. 67, a.; Palyblank v. Hawkins, 1 Saund. Rep. 253, n ; S. C. Doug. 350.
This interest may be defeated by the act of the wife alone; as if, at common law, the wife is attainted of felony, the lord by escheat could enter and eject the husband. 4 Hawk. P. C. 78 ; Co. Litt. 40, a.; Vin Ab. Curtesy, A.; Co. Litt. 351, a.
After the birth of issue the husband is en . to an estate for his own life, and in his own right, as tenant he curtesy initiate. Co. Litt. 351, a. 30, a. 124, b.; Schemerhorn v. Miller, 2 Cowen’s Rep. 439. He then becomes sol ant to the lord,
Then he may forfeit his estate for life by a felony, which, until issue born, he could not do, because his wife was the tenant. 2 Black. Comm. 126 ; Roper Hus. & Wife, 47.
If the husband, after the birth of issue, make a feoffment in fee, and then the wife dies, the feoffee shall hold the land during the husband’s life; because by the birth of issue, he was entitled to curtesy, which beneficial interest passed by the feoffment. Co. Litt. 30, a.
If such feoffment is made before issue born, the husband’s right to curtesy is gone, even though the feoffment be conditional and be afterwards avoided. And if in such case the husband and wife be divorced a vinculo matrimonii, the wife may enter immediately. Oruneleys case, 8 Co. Rep. 73.
The husband’s estate after issue born, will not be defeated by the attainder of the wife, for his tenancy continues, he being sole tenant. 1 Hale, P. C. 359; Co. Litt. 351, a. 40, a.; Bro. Ab. Forf. 78.
The obvious conclusion from these views of the nature of the interest of a tenant by the curtesy initiate is, that such tenant is seised of a freehold estate in his own right, and the interest of his wife is a mere reversionary interest, depending upon the life estate of the husband. The necessary result of this is, that the wife cannot be prejudiced by any neglect of the husband, and of course she may bring her action, or one may be brought by her heirs, at any time within twenty years after the'decease of the husband, when his estate by the curtesy, whether initiate, or consummate, ceases, and her right of action, or that of her heirs, accrues. In this respect there is no distinction between curtesy initiate and curtesy consummate. Melvin v. Locks Canals, 16 Pick. R. 140.
So far as we are aware, this principle has never been questioned, where the inheritance of the wife has been conveyed to a third person, either by the deed of the husband alone, or by a
This is true where the husband has acquired no estate by the curtesy, and is seized merely in the right of the wife of her estate. Such are the cases of Guion v. Anderson, 8 Humph. Rep. 298; Mellus v. Snowman, 8 Shep. Rep. 201.
And if the husband is tenant by curtesy, as he and his wife are seized of the fee in right of the wife, the action must be brought by husband and wife, and a joint seizin in fee alleged in them in her right. Anon. Buis. 21. Their joint right of action is barred by the lapse of twenty years after it accrues. But it by no means follows, that the reversionary right of the wife, accruing in possession after the estate of her husband has ceased, is also barred. It is well settled, that the same party may have | several and successive estates in the same property, and several Brights of entry by virtue of those estates, and one of those rights f may be barred without the others being affected. Hunt v. Burn, 2 Salk. 422 ; Wells v. Prince, 9 Mass. Rep. 508 ; Stevens v. Winship, 1 Pick. Rep. 318 ; Tilson v. Thompson, 10 Pick. Rep. 359.
And every reason, which can exist in favor of the right of any reversioner, applies equally in this case, namely, that a reverIsioner has, as such, no right of entry and no right of action during the particular estate, and consequently is not barred until twenty years after his own right of entry accrued. 2 Sugd. V. & P. 353; 3 Steph. N. P. 2920, n. 10; 9 Mass. Rep. 508; 1
In Jackson v. Johnson, 5 Cow. Rep. 74, and Heath v. White, 5 Conn. Rep. 228, this question arose, and was decided in accordance with our views, 'and we think upon sounder principles than the cases in Massachusetts, to which we have referred.
We have compared the provisions of the Revised Statutes with the older Statutes, and do not perceive, that there is, as to the point in question, any difference in their effect. Under neither would the plaintiff propose to claim any advantage from the proviso. His ground is not that the ancestor was a married woman, when her right accrued; but that her marriage and the birth of one or more children had vested a life estate in her husband, and that the disseizin was done to him, and that no right of action accrued to her in virtue of the reversionary interest, under which] her- heirs now claim, until she became a widow, and the hus-f band’s estate had terminated; and that the action is brought! within twenty years after that event. This appears to us a correct view of the case, and of the law; and the verdict must therefore be set aside, and a
New trial granted.
