Burris v. Page

1 .A conveyed, by deed, a tract of land to B, (the wife of C) “and to the heirs of her body,” “ habendum to her and the heirs of her body.” B and C had four sons and one daughter. B died. Held 1. That by the common law the deed, conveyed to B an estate in fee-tail; but by the 4th section of-the act concerning conveyances, Rev. Code 1825, she took only a life estate in the premises: and that upon the death of B, her husband did not become tenant by courtesy. 2 Upon the death of B, the first donee—plaintiftj who was the eldest son of. B. and C, became entitled to the premises “ according to the course of the common law. ”

APPEAL FROM WASHINGTON. CIRCUIT COURT. STATEMENT OP THE CASE. This. was. an action of ejectment brought by James D, Page, who is the eldest son of James M. and Sybill H Page, against David- Burris, for a tract of land containing 80 64 acres, lying in- Washington county. On the trial, the attorneys for the. parties made a case for the opinion of the court. The facts agreed upon are as follows: That Samuel C. White was, at and before the commencement of this suit, guardian of James D. Page,.having been appointed by the county court of Washington. That -lames D. Page, the plaintiff, is the eldest son of Sybil! H. and James M. Page, who,"prior to the date of (he deed hereafter mentioned, had keen lawfully married. That James D. Page was born on the 21st November, 1831; that Sybill H. Page, the wife of James M. Page, died on the 27th September, 1843 ; that the premises sued for and described in the declaration, are the same conveyed by Benjamin Horine and Catherine his wife, (in whom Was the fee,) to Sybill H. Page, by deed bearing date the 20th April, 1833, which deed was considered as part of the agreement. In this deed the said Horine and wife, for the consideration of natural love and affection, and the further consideration of 'one dollar, conveyed to Sybill H. Page, their daughter, formerly Sybill H. Horine, and to the 'heirs of her body, the lands sued for, habendum to her and the heirs of her body. It was further agreed that James M. and Sybill H. Page, had besides James D. Page, who is the eldest, four boys and one girl- It was further admitted that the defendant David Burris obtained judgment against James M. Page, the husband of Sybill H. Page) that execution issued) that the land sued for was levied on and sold by the sheriff; that at said sale the defendant became the purchaser of said land, and that the sheriff, executed and acknowledged to said Burris a deed for said land, by which he acquired all the right and title of James M, Page that said Page acquired in virtue of his marriage With Sybill H. Page. It is further admitted that the defendant commenced an action of ejectment against James M. Page on the 25th August, 1843, who was at that 'date in possession of the premises sued for, and on the 1st May, 1845, there Was a judgment of possession in favor of said Burris, and against said James M. Page, by Which he got possession. That said defendant before and at the commencement ef this suit, was in possession of the premises sued for, and that he is now in possession, and that Burris has no other title than that which he aeq uired by the purchase of James M. Page’s interest. Upon this state of facts, the court rendered judgment in favor of the plaintiff, and assessed his damages. The defendant moved for a new trial, which being overruled, he appealed to this court. The only question for the consideration of the court, is, whether James M. Page was en» titled to the possession of the premises by virtue of his marrying with Sybill H. Horine, having issue by the marriage, the said Sybill being seized of the land at her death. The whole matter must turn upon the construction the court shall put upon the 4th section of the act approved February 14ih, 1825, regulating conveyances. Rev. Stat. of 1825, page 216. The object of the legislature in passing this law, was clearly to put an end to entailed es» tates. It was not the intention to depidve the husband of his courtesy nor the wife of hef •dower. The construction of the statute which would cut off the tenant by the courtesy, would where the land was conveyed to the husband, and the heirs of his body deprive the wife of her dower. The wording of the law appears to have been very guarded ; the donee becomes a mere tenant for life, and the remainder passes on his or her death to the person or persons to whom the estate tail would on the death of the first donee in tail first pass according to the course of the common law. At common law the remainder would pass first to the husband, if living, if dead, then to the eldest son, if there be a son, if no son then to the daughter. It was obviously the intention of the legislature by this section of the law not to change the right of possession or enjoyment of the estate as to any person in being at the time of its creation, but merely to change the nature of tenure. Remainder as applied to estates used in different eases. 2 Fearn, 110 ; 1 Fearn, 3 Note c j Rules for construction, 1 Chitty, Black 40, 41. Rule in Shelley’s case, 2 B erre, on Rem., 207, 208,side p. 471, top page 228. The laws of most of the States respecting entails, converts the estate tail into a fee. Our law upon this subject is different from that of any other State so far as I have examined. 1st. This is a conveyance to Sybill H. Page, and the luirs of her body habendum et 1 emendara to her and the heirs of her body. The estate created by this deed is therefore a fee tail general at common law. Thomas Coke Littleton, Volume 1, Top paging 597, 601 et sey ; Cruises Digest, Vol. 1, p. 78, sec, 13 ; Bacon’s Abridgment, Vol 2, side paging 544 et sey. 2d- The statutes of 1825, Vol. 1, page 216, section 4, enact: “ That in cases where by the common law any person or persons would now be, or might hereafter become seized in fee tail of any lands, tenements, or hereditaments, by virtue of any devise, gift, grant, or other conveyance heretofore made, or hereafter to be made, or by any other means whatsoever, such person or persons instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be and become seized thereof for his or her natural life only, and the remainder shall pass in fee simple absolute to the person or persons to whom the estate tail would on the death of the first grantee, devisee or donee in tail, first pass according to the course of the common law. This statute is substantially continued in the revision of 1835, p. 119, Ex in* stanti, that this fee tail is created by deed, this statute steps in and cuts down the estate tail to an estate for life in Sybill H. Page, with lemainder in fee to those to whom the estate tail would have passed, (had it not been cut down) according to the course of the common law. 3d. Our statute cutting down the estate tail created by deed, to a life estate only in Sybill H. Page, there is no tenancy by the curtesy in her husband James M. Page, for there is no tenancy by the curtesy in a life estate. Chittey’s Biackstone, Vol. 2 p. 99 j Thomas Coke, Vol. 1, top paging 648, and note E, where it is said to make a tenancy by the curtesy, the wife must be seized of an “ inheritance freehold,’’ which an estate for life is not. 4th. On the death of Mrs. Page, the fee passed under this statute as it would have done according to the course of the cimraom law, that is to James D. Page, the eldest son the pres* ent plaintiff. Chitty’s Biackstone, Vol. 2 p. 162 and 171 ; Thomas Coke, Vol. 2 p. 204, and note S; Cruises Digest. Vol. 3, p. 377, as a legislative interpretation of the statute upon this point. See Rev. S’at. of 1845, p. 219, St. Ed. 5th. As Mrs. Page had only a life estate, her husband James M. Page could not be tenant by the curtesy, and theiefore Burris acquired nothing by purchasing Page’s interest, and he is therefore a mere trespasser.