| N.C. | Dec 5, 1831
The defendants pleaded that at the sale of the interest of Wagstaff in the land, John Kerr, the tenant for life, was alive, and the demandant demurred.
His Honor, Norwood, J., at PERSON, on the last circuit, overruled the demurrer, and dismissed the petition, whereupon the demandant appealed. When this case was opened, my impression was that, as the interest of the wife was a vested remainder in fee, after an estate for life in her parents, and was therefore incapable of a seizin either in deed or in law, the law cast an estate on the husband during the marriage, which he could himself alien, and which could consequently be sold for his debts. I was led to this conclusion from cases which I then thought analogous, to wit, where the estate was incapable of an actual seizin, as in cases of advowsons, rents and other incorporeal hereditaments; that the law gave them to the husband during the marriage, and upon the death of the wife, having had issue born alive, he became tenant by the curtesy thereof; and that upon the death of the wife, her heir succeeded to her estate or interest therein without an actual seizin by her. But upon reflection, I am satisfied that all these analogies fail. That as regards the freehold interest of the wife, the husband by the marriage alone can acquire no estate or interest, and that there must *231 be an actual seizin of the husband during the marriage of such estates as admit of it; as in lands and other corporeal (277) hereditaments; and in both corporeal and incorporeal estates a presentinterest. I confine myself to freehold interests. This rule is founded, I think, on feudal reasons, and although the doctrine of feuds has in a great measure been abolished, still many of the rules growing out of it remain, and govern our real estate, and this among others. The reason why, in freehold interests there must be a present estate in the wife to give the husband an interest arises from the principle of the feudal law, that it is the freeholder only who is bound to perform the feudal duties, and that as the functions of the government could not otherwise be carried on (as the feudatory was concerned in the making and administration of the laws, as well as the defense of the kingdom), there must in every feud be a freeholder. For if one feud could be withdrawn from the obligations by law imposed on it, all might; and thereby the functions of the government would entirely cease. Hence the rule that the freehold could not be in abeyance, or in no one; and hence grew the rule that a contingent freehold remainder must be preceded by a particular freehold estate. But no such rule prevailed with the residue of the inheritance. It might be in abeyance, in uncertainty, or as is expressed by some, in nubibus. All that was required was that there should always be a freeholder to occupy the land, and answer for its duties. Where there was one, the ulterior limitations might be to uncertain persons, provided the uncertainty was removed before or at the time the person was wanted to fill the freehold. Hence the rule that the contingent event, on which the remainder is to vest, must happen, or the contingent remainderman must be in esse during the particular estate, oreo instanti that it determines, that there may be no chasm. A child inventre sa mere would not at common law fill the freehold, and make the contingent remainder good. Hence the law is entirely regardless of looking out the remainderman until he is wanted to fill the freehold, and will not before that time decide on the person to take. As where there is an estate to A. for life, remainder to B. and his heirs; B. dies leaving A.; the heir of B. is not looked for until the death of A. (278) For until that time he is not wanted to fill the freehold, although B. had a vested interest, and he who is the heir of B. at A.'s death, and not he who is heir at B.'s death, succeeds to the estate. We had a remarkable application of this rule some years ago, in the late Supreme Court, in the case of Exum v. Davie, 1 Murph., 375. An estate was limited to Harwood Jones for life, remainder to John Jones and his heirs. John Jones died before 1795 (when the act passed calling the females equally with the males to the inheritance), leaving a son and a *232 daughter. The son was then his heir, to wit, at his death. After 1795, Harwood Jones, the tenant for life, died, at which time both the son and daughter were the heirs of John Jones, and they both succeeded equally to the estate. It was said to be quite immaterial who were the heirs of John Jones as to these lands when John Jones died. For there was a freeholder in the person of the particular tenant; and the law looked for the heirs only when they were wanted to succeed to the freehold interest, which was on the death of the tenant for life. In the case before the Court, the law does not look for the children of the tenants for life until the estate of the tenants for life determines. For they were granted for no purpose, and as the husband had no duties to perform in regard to the lands, the law gave him no interest or estate therein. I have confined myself entirely to freehold interests. As to chattel interests in lands, as terms for years, the doctrine of feuds does not apply, as they were unknown to the feudal law.
As to the argument that the husband could have sold these lands by estoppel, so he might sell any other lands in the same way; but the sheriff can only sell what the defendant himself can sell, where his conveyance operates by way of passing or transferring an estate; not where it operates by way of estoppel. If it included sales operating by the latter mode, the sheriff might sell any tract of land, or all the lands in his county.
I have entered more at large into this case from what fell from me when it was opened. The authorities cited and relied on by the (279) defendant prove that there must be a present interest and a seizin of corporeal hereditaments. Taylor v. Hoode, 1 Bur., 107; Tho. Co., 672, 582; 2 Bl. Com., 127; 2 Bac. Ab. Curtesy, chs. 2, 3; Preston on Estates, 215. It may therefore be said as universally true that by the marriage the husband acquires no interest in the corporeal real estates of the wife until actual seizin, and therefore can have no interest in her real estates in reversion or remainder, dependent on or after a preceding freehold estate therein in another, until the determination of that estate, and a seizin in him.
PER CURIAM. Judgment affirmed.
Cited: Caldwell v. Black,