17 Barb. 157 | N.Y. Sup. Ct. | 1853
The precise question to be de7 termined is, whether the plaintiff at the time of the trial had any legal estate in the premises, sufficient to sustain ejectment. The defendant’s first objection is founded upon the statute for the more effectual protection of the rights of married women. (Sess. Laws, 1848, p. 307, § 2. Laws of 1849, p. 528, § 3.)
It cannot be disputed that in 1845, at the time the premises descended to the plaintiff’s wife, Lucy, (whose maiden name was Fillmore,) the plaintiff acquired a freehold estate, jure uxoris. (2 Kent’s Com. 130, 3d ed.) A husband’s estate in the lands of his wife, held in her own right, is denominated a freehold, because of its certain continuance during coverture, and during his life, after her decease, provided he is tenant by the curtesy. As a necessary incident, the husband becomes entitled to the possession, and to the rents and profits, commensurate with his estate, and if ousted may recover the same, in his own name. These marital rights were well settled by the common law, but the defendant’s counsel contends that the provisions of the statutes of 1848 and 1849, referred to, abrogated the husband’s estate, restoring, so to speak, to the wife the fee absolute, with full control and power of alienation, irrespective of the husband. It appears that in this case the wife did act upon this view of the law, by leasing and subsequently conveying the premises to the defendant. But we are clearly of the opinion, that neither the statute nor the conveyance of the wife, affected, in the least the estate of the plaintiff, or his right to prosecute this action. That estate was acquired prior to the enactment of the law: it became vested under the marriage contract, and it is not within
It follows that the conveyance of the plaintiff’s wife to the defendant conveyed no estate affecting the plaintiff’s'rights. The wife had no present estate which she could legally convey; the deed is therefore wholly inoperative; a nullity as respects the plaintiff.
The second objection to the recovery is, that the plaintiff’s legal estate became divested by the execution sale, and the expiration of the time of redemption, before the trial. This ground is untenable, because the sale had not been consummated by sheriff’s conveyance. Until conveyance, the title of the purchaser is inchoate ; by the simple act of purchase he acquires no legal estate in the land, but a right to an estate, which may be perfected by conveyance; the legal estate remains in the debtor, who prior to the sheriff’s deed, is entitled to the possession and to the rents and profits. This is apparent from § 64, 2 B. §. p. 470, 3ded. If no redemption is made, the sheriff is required to complete the sale by conveyance, “ which conveyance shall be valid and effectual to convey all the right, title and interest which was sold by such officer.” (4 Kent’s Com. 431, 3d ed.) All redemptions must be within fifteen months of the time of sale, for the officer is then to execute
Gridley, W. F. Allen and Hubbard, Justices.]
Before conveyance, the purchaser could not maintain ejectment to obtain possession ; and pari rations, he cannot defend a possession obtained against the consent of the debtor.
From these views it follows that the plaintiff, at the time of the trial, had. both the legal estate and the right of possession. The judgment must therefore be affirmed.