62 Tenn. 410 | Tenn. | 1874
delivered the opinion of the Court.
This is an action of ejectment, in which the plaintiff, Upchurch, sues for a life estate which he claims as tenant by the curtesy, under the facts following: The plaintiff, Upchurch, intermarried with a daughter ,of Caleb Anderson, deceased, late of Jackson county. The said Caleb Anderson died seized and possessed of a
The first and main question pressed in argument is decisive of the case. The plaintiff's right depends upon the question of law, whether, under the facts, he was tenant by the curtesy of the land in question. The four elements necessary to constitute the tenancy, are marriage, issue, seizin, and death of the wife. Three of these undoubtedly exist in this case. These are the marriage, the birth of issue capable of inheriting, and the death of the wife. But we are of opinion that the indispensable element of seizin of the wife during the coverture, is wanting. A seizin, in the sense of the ancient law, was the completion of the feudal investiture by which the tenant was admitted into the feud, and performed the rights of homage and fealty. . A seizin in fact, is now under
In this country, the making, delivery and recording of a deed of land, passes the seizin without necessity of formal entry. This is by force of Statutes in the several States; in some, such a deed being equivalent to a livery of seizin, and in others, dispensing with any further .act to pass the full and complete title; 4 Greenl.; Cruise’s Dig., 45; 3 Dali. Penn., 489.
There was, undoubtedly, a seizin in the plaintiff’s wife, of the general inheritance in her father’s land, to the extent of her interest, the moment his death intestate devolved the inheritance upon his heirs. But did this seizin comprehend the dower interest in the lands, though not yet assigned, in the technical sense necessary to raise the inchoate estate by the curtesy? We think not. The marriage initiates the right of dower, and the death of the husband perfects it.
By the death, the estate descends subject to this right of dower; and if a quasi seizin in the dower interest, attaches with' the devolution of the inheritance upon the heirs, it yields eo instanti with the subsequent assignment of dower, and the assignment by relation takes effect from the moment the right was communicated by the husband’s death.' The intermediate quasi seizin is, then, in legal comtemplation, no seizin at all. Thus, it is said, although the widow’s right
These authorities have been followed by this Court, and are distinctly recognized in Reed v. Reed, 3 Head, 491, where it is held, that, “if a woman on whom lands descend endow her mother, afterwards marries, has issue, and dies. in the life-time of her mother, her husband will not be entitled to an estate by the curtesy in those- lands whereof the mother was endowed, because the daughter’s seizin was defeated by. the endowment.” Though the facts of that case are slightly variant ' from those of. this ’ case, the same principles must be decisive of both. The Circuit Judge instructed the jury otherwise, and it results, that the judgment must be reversed and a new trial awarded.