1 Stew. 590 | Ala. | 1828
The first question material to be considered is, whether Ann Lecatt, formerly Ann Surtill, during her widowhood, and at the time of her marriage with L. Lecatt, was seized of an. estate of inheritance in the premises, whereof an estate by the curtesy could be created ? There is no controversy respecting the general definition of an estate by the curtesy. The wife must have been seized of an estate of inheritance; the marriage must have actually taken place; there must have been issue by such marriage capable of inheriting the estate; and death of the wife. Here no question is raised as to the validity of the marriage. But it is contended on the part of the appellants, that no sufficient dtle to the premises is shewn to constitute a seizin during coverture, or at any other time. Rel ance is placed on the effect of the ante-nuptial contract, and the decree therein referred to in the bill of exceptions, as well as the general doctrine on the subject of curtesy. It is necessary to inquire how the title would stand independent of the contract or decrees; then, the effect of either or both on the claim to curtesy.
There are no documentary evidences of original title on either side; but it is shewn that Surtill, the former husband, under whom Lecatt claims, had been in possession five or six years previous to his death, under a claim of right. It does not appear that his title was ever questioned during his life. He died, having devised all his estate, real and personal, to his wife, Ann, and his two children, then alive. She, within eight or ten months thereafter, having intermarried with Lecatt, the present plaintiff, and having possession of the premises, continued the same for some time after the marriage; she survived her said two, children by Surtill, and became sole proprietor according to the sufficiency of the title. How long she continued in possession after the marriage is not precisely shewn, except that the premises appear to have been occupied by Mallory and others under him, for seven years before the institution of this suit. The nature or validity of his title does not appear otherwise than from the proof of the plaintiff, that he, Mallory, and those under whom he claimed, acquired the possession under a purchase from the said Ann. If we are to assume the fact, that Mallory immediately succeeded her in the possession, allowing the seven years possession to him and
In the case of Smith and Lorillare!,
With respect to the public lands, it is not to be presumed that squatters can, by possession, mature their claims to a right of possession. The issuance of a patent at a subsequent period would defeat them, or the archives of the government would shew, that a grant had never issued. An. additional security consists in the maxim, that nullum tempus occurrit regi. In this case, the plaintiff cannot claim the benefit 'of twenty years possession. The possession on which- he can rely, consists in the occupancy by Surtill, and the wife Ann, under color and claim of right, ten or twelve years including her widowhood, and part of her term of coverture with the plaintiff, and in his possession jointly with her, a short time during saicl coyerture.
From the proofs here made, the defendants must he viewed as holding under amere naked possession ; or, as deriving title from the plaintiff's wife during coverture, which would then strengthen the inheritance. They assume the former attitude ; hence it results, that the plaintiff’s wifi.., during her cove.-ture with him. had the actual possession of the premises, with at least the apparent right thereto, derived from prior occupancy of herself and former husband, under a claim of light. It is also material to remember that this grade of title is twofold; that in addition to the prior possession, a descent, or what is equi valent thereto, has been cast in favor of the plaintiff. A title by devise is believed to transfer substantially, the same interest to the devisee, that a legal descent would vest in the heir. And we recognise the doct> me, that the death of the possessor, who held under claim or coior of right, transmits to the heir or d-visee, at least an apparent right of possession. In this case, it may also be observed, that the devise was made to the same persons who, in case of intestacy, would, under the subsequent events, have become the heirs at law ; and that the two children who were joint devisees with the plaintiff’s wile died in her life time, whereby she became sole proprietor of whatever estate was transmuted, whether as heir to her children, or as sutvhor of the jobu tenancy; and though this twofold claim may be insufficient to imr
Seizin in the wife, -was necessary to the creation of an estate, in which a tenancy by the curtesy could be sustained. If it has been shewn, as we think it has, that a prima facié estate of inheritance resided in the wife, then, inasmuch as the wife, jointly with the plaintiff, actually .occupied the premises, she was clearly seized of an estate of inheritance, which could become the- subject of curtesy. Seizin is undet stood to mean nothing more nor less than posséssion of an inheritance by the person entitled. Possession by a lessee; or one having no evidence of title, can create seizin in him. ' It must be by one having at least presumptive evidence of title to the inheritance; and which in this case, we think, existed in-the wife during the coverture.
The next inquiry is, does the ante-nuptial contract, or the decrees in chancery, affect the plaintiffs’ right ? We are clearly of opinion that neither of the decrees can materially influence the decision. A divorce a mensa et thoro does not avoid any estate for the life of husband and wife. In this case, the decree, contains no expression respecting any of the property of either of the parties. It merely declares a divorce from bed and board ; and whether in relation to the wife’s other bill, to enjoin the plaintiff from the use of her property, it was-competent for the chancellor to have extended the'operation of the ante-nuptial contract, is not now a question. It is sufficient to say it has not been done. The decree contains only a perpetual injunction against the plaintiff’s committing any waste of the estate, or disposing of the same, or recen ing any of the rents under a penalty therein, expressed. It did not materially vary the rights of either party in i elation to the estate, from-the situation in which they were placed by the terms of the contract. In the lifetime of the wife, it may have furnished authority to the chancellor to attach the plaintiff, had he violated the injunction, by intermeddling with the estate; but since her death, he is left to abide the effect of his contract according to’its legal interpretation. What influence then can it. have on this claim to curtesy ? The contract was made between
In the case of Robert against Deawell,
It is further objected on the part of the defendants,. ' that the bill of exceptions purports to contain all the evidence, and does not shew that the issue of the marriage ■ was.born alive, or that the issue was by his said wife; as it is only stated that the plaintiff'‘,‘had issue after his' .marriage with the said Ann.” ' If either of these facts were not proven to the satisfaction of the jury, the omission should have been fatal to-the.action; and if from the - exceptions taken, it cann'ot now be reasonably inferred that they were proven, the exception is equally available in'this Court. The record does,not purport to state the-•evidence literdiy, as given in by the witnesses. As is usually the cáse,-it is understood to present a summary of the material facts contested or admitted' on the trial. By ■law, as well as, the usual practice, -exceptions are claimed and drawn out by the .counsel for the party excepting, the Judge will refuse to.sign, or will make corrections where ,'material inaccuracies are discovered; but ifthe facts are intelligibly presented in the usual acceptation of the-terms used, he is not presumed to be astute. The points are supposed to be .stated by the-counsel, as favora.bly to Ids client as the case will allow; and those.- on, which he
To the form of the action, we believe there is no available objection. The statute evidently intended that this action should, in all things, supersede at least the common law action of ejectment. The question suggested in argument, whether the husband could under any circumstances, become heir to his wife’s real estate, is found unnecessary to the decision of this case.
These are all the points recollected to have been particularly discussed. Hence, a majority of the Court are. of opinion, that no error appears in the record, and that the judgement below must be affirmed.
In this case, two material points present themselves for consideration: 1st. Was Ann Lecatt, during her intermarriage with Littleton Lecatt, seized of an inheritable estate; and 2nd. Did Littleton Lecatt, by virtue of the instrument of writing which he executed before his intermarriage with the said Ann, renounce his right to the curtesy ?
As to the first proposition, the word seized, implies an inheritable estate; for a party cannot be seized of an estate for life or term of years, but is said to be, possessed merely of those estates.
In the case of Powell and Stodder,
I was under the impression that the opinion of the’ Court, delivered at the last terpi,. in the case of Powell and Stodder, was conclusive of this question. In that case the Court decided that twenty years possession by the plaintiff, or those under whom he claimed, should be considered as prima facie evidence ofhtitle. From reading that opinion, the rational and irresistible inference is, that the Court intended to be understood, that any possession short of twenty years wotald be insufficient. It is not so much as intimated, that a less period of time would be sufficient. . The possession of Surtill, and of the Lecatts, husband and wife, taken together, fall considerably short of twenty years.
As to the second proposition, its solution must depend on a sound interpretation of Lecatt’s relinquishment, executed by him previous to his intermarriage with Ann Surtill. By the terms of that instrument, he “ renounced all claim, right, title or interest to any part of the estate of Thomas Surtill, which he might acquire by virtue of his intended marriage.” The question is, whether this relinquishment extends to, any interest or claim in that estate, which might accrue to him at the death of his wife, so as to bar his right to the curtesy? This, like all other instruments of writing, must be construed according to the obvious meaning and intention of the parties, as far as is consistent with the rules of law. It will be conceded-on all hands, that this contract deprived Lecatt of the use and enjoyment .of the estate, during the life of his wife; and from the generality of the terms expressed in the contract, it appears to me that it equally extends to rights and interests in that estate, derived to him on the decease of his wife ; because his right to the curtesy is as much by virtue of the intermarriage, as was his right to the use and enjoyment of the land during the life of his wife ; and if they are both rights and interests acquired by virtue of the intermarriage, then the ante-nuptial contract renounces and relinquishes as well the one as the other; as well the use of the estate during the
It has been said, that the relinquishment creates a trust estate, and that trustees are necessary to sustain an equitable interest, and that such a title cannot be set up as a successful defence to an action at law. I hold the law to be otherwise. A deed of trust is not void for want of a trustee; and such an instrument, though it create an equitable estate, may be used in resistance to an action at law.
But the instrument in the present case, bears no resemblance to a deed of trust, nor does it create any thing like a trust estate, but is a mere relinquishment, or absolute conveyance of a future interest or estate, to take effect from and after the marriage ; it operates as a merger of Lecatt’s future interest, so that the estate might remain the same after as before the marriage. The clear and manifest intention of the parties was, that Lecatt should acquire no right or interest in Surtill’s estate by virtue of the intermarriage, but that it should remain in the same condition, according to the provisions of Surtill’s will, as if his widow had never intermarried with Lecatt.
Upon the entire case, I am of opinion that Ann Lecatt ’was not seized' of an inheritable estate, and that if she w.i, her husband Lecatt, the plaintiff below, renounced hi.-, right to the curtesy, and that the judgement should be reversed.
Judgement affirmed.
10 John. R.355.
Jackson vs. Hagen 2 John 22. Same vs. Myers 3 John R. 388. Same vs. Harden 4 John R. 202-6 John. R. 213. 9 John R. 174.
Jayne vs Price, 5 Taunton, 326. Bateman vs Allen Cro. Eliz. 437. Allen vs. Rivington. 2 Saunders 111.
Stodder v. Powell, p. 287.
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See also Tabb & others v. Archer & others 3. Hunn & Munn 412. Stewart v. Stewart, 7 John. Ch. R. 229.
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