6 Mo. App. 416 | Mo. Ct. App. | 1879
delivered the opinion of the court.
In 1853, James Green died, leaving a widow and seven children, one of whom, Sarah Ann, married Lorenzo Cottle a few months after her father’s death. In 1855, there was partition of the decedent’s lands, when the tract of one hundred and twenty-three acres here in controversy was allotted to the widow for her dower. Sarah Ann Cottle
The point made upon the demurrer is that there could be no tenancy by the curtesy in the interpleader, for want of seisin in the wife during coverture. The widow of James Green held possession, as dowress, until long after the ■death of Mrs. Cottle. But it is urged by the appellant that his interplea avers actual seisin by Mrs. Cottle, as heir of her father, after her marriage and before the assignment of ■dower to her mother; that this fact is admitted by the demurrer, which, therefore, ought to have been overruled. To this the respondents answer that the averment of seisin in the interplea is coupled with an allegation which defeats its assumed legal effect, to wit: the allegation touching the assignment of dower, and the widow’s seisin thereupon. It is asserted to be the rule that, notwithstanding an intervening possession by the heir when dower is assigned, the seisin of the widow is held to have been anterior to that of the heir, and thus to have rendered it null for every purpose. If this position be correct, and if actual seisin of the wife during coverture be essential to a tenancy by the curtesy, it will follow that the demurrer was properly sustained, notwithstanding the averment of seisin in Mrs. Cottle. For the whole pleading must be taken together; and if one averment be superseded or destroyed in legal effect by another, it is as if the first were not in the pleading at all.
There are both English and American authorities for the rule as stated by the respondents. An elementary writer
An analysis of the doctrine, as the respondents apply it to the present case, will discover the following elements: First, actual seisin in the wife during coverture is essential to a tenancy by the curtesy; second, there is no actual seisin in the case of a reversionary interest; third, a wife’s interest, as heir of her father, in dower lands assigned to her mother, is reversionary merely, and therefore not a subject for tenancy by the curtesy. It is thus seen that the whole strength of the respondent’s claim depends upon the sufficiency of the first proposition,
The rule at common law finds its origin and foundation in the supreme importance attached to seisin in all matters of transfer under the feudal system. A descent passed only to the heir of the person last seized. The maxim was,'
In Bush v. Bradley, 4 Day, 298, the subject was examined with reference to the law of descents in Connecticut, and it Avas determined that in that State the husband might be tenant by the curtesy of lands in which the Avife had title, but of which she was not actually seized during coverture. It does not appear whether, in that case, the wife OAvned a mere reversion or not. The decision was based upon the general inapplicability to American descents and transfers, of the English rules concerning seisin.
The question here presented would seem to have been settled long ago by our Supreme Court in Reaume v. Chambers, 22 Mo. 36. It was there declared that such an idea as that actual seisin of the wife’s land was necessary to entitle the husband to curtesy had never prevailed in Missouri. Said Judge Scott: “ Whatever may be the common law on the subject, the circumstances of the country demand a modification of the rule. * * * Descents with us depend not on actual seisin, but on the statute regulating descents, and we have alloAved the conveyance of lands Avhilst in the adverse possession of others.” The argument of respondents, hoAvever, denies the application of that decision to the present case. The land there in controversy
We are therefore of opinion that the demurrer to the interplea ought to have been overruled. The judgment will be reversed and the cause remanded.