Day v. Cochran

The interest which a man has in the estate of his wife, as tenant by the courtesy initiate, is a well defined legal estate, it being a freehold estate which will exist after the death of the wife, for the lifetime of the husband, if he be the survivor. If K. had at the time of the levy of the attachment, any interest in the premises in controversy, it was that of a tenant by the courtesy initiate, and, like all other legal estates, it was subject to be attached and sold under execution. Tenancy by the courtesy, is an estate for life, created by the law, and it occurs where'a man marries a woman who is seized at any time during coverture of an estate of inheritance, and has issue born alive, who might by possibility inherit the same estate as heir to his wife. At common law it is necessary there should be marriage, actual seizin of the wife, issue, and death of the wife, to create such an is initiate on issue had and consummated on the deatbj&FthaCfji^ a Avi, Upon the death of H., Mrs. K. had a right, by the exjresirtérms of th'e’s^tike, to enter upon the premises, and to hold and enjoy them according to Jne extent of the title. fíJJÁW It is well settled, that where a party has gone into Possession of land undejga ' legal title, and after his right has expired, holds ovólt; cjjn-tinued, will not be regarded as adverse to the party «^titled to the revesaron. Held, that II. and B., holding over after the death of H!^tt3^fe»BlS7*Secame tenants at sufferance, and their possession was not hostile, or adverse to the right of the reversioners. Our statute (Hutch. Code, 615) is very explicit on this point, besides the general law in relation to it, which precludes the parties who hold possession of the premises under the deed from H., P., and Gr., from setting up that possession as adverse to the title of Mrs. K. Actual seizin, or seizin in fact, was necessary, according to the strict rules of the common law. It is now the settled law in England, that an entry in all cases, is not necessary to an actual seizin in deed, for if the land be in lease for years, courtesy may be without entry or receipt of rent; the possession of the lessee being the possession of the husband and wife. The law in regard to the tenure by courtesy, is still more liberal in New York, where it has been held, that if a wife be the owner of wild and uncultivated land, not held adversely, she is deemed seized in fact. Held, a more stringent rule will not be applied in this State. The .case at bar comes completely within this rule. Held, that Mrs. B. was seized in law of the premises, and they were not held adversely, and that II. and B., after the death of II., held as tenants at sufferance to her. The relation of landlord and tenant existed between them; hence their possession was her possession, and being constructively seized in fact, an actual entry was not necessary, in order to entitle K. to his courtesy in the premises.

In error from the circuit court of Adams county; Hon. W. P. Harris, judge. Adam Bower owned in fee simple certain property described in the declaration. He died in 1834, leaving three daughters, Mary, Martha, and Sarah. Mary married William Haile. Martha married William M. Phipps. Sarah married John Gibson. In 1835, Holton and Barlow went into possession of said property, under an agreement or contract for title with Phipps, Gibson, and Haile, and their respective wives as above; and subsequently, in the same year, said Phipps, Gibson, and Haile executed a deed, which was signed by their respective wives, and by them, to said Holton and Barlow of said property, which conveyed whatever marital interest they had, but did not convey the fee simple interest of their respective wives. In September, 1838, Haile, the husband of Mary, died, and in the fall of 1839 she intermarried with Charles Rice. In 1839, Phipps, the husband of Martha, died, and she remains a widow. After the intermarriage of Charles Rice with Mary, an action of ejectment was instituted on the 19th February, 1840, in the name of Charles Rice, in right of his wife Mary, and in the name of Mary Rice, who is one of the heirs of Adam Bower, deceased, and in the name of Martha Phipps, who is one of the heirs of Adam Bower against the Agricultural Bank et al., and other persons who claimed by mortgage from Holton and Barlow; verdict was rendered for the plaintiff at the. November term, 1843, of the United States circuit court at Jackson. The cause was removed by writ of error to the Supreme Court of the United States, and the judgment of the circuit court was affirmed in 1846, at the January term. The execution of the writ of possession was enjoined. At the May term, 1847, of the United States circuit court, the injunction was dissolved; a writ of possession then issued, and on the 21st day of May, 1847, the said writ of possession was executed by putting the defendant, L. M. Day, into possession of two undivided thirds of said property which descended to said heirs; the other third remained in possession of said Holton and Barlow, and said mortgagees, Gibson and wife not having joined in said ejectment suit. Said Holton and Barlow, and those claiming under them as above, from the time they went into possession under said agreement, and after the execution of said deed as above to them, claimed a fee in the whole of said land under said agreement and deed, and continued in possession, so claiming until the affirmance by the Supreme Court of the judgment of the circuit court, and after that, by virtue of their injunction aforesaid, they still retained the possession and control of said property, until the said injunction being dissolved, the writ of possession was executed as aforesaid, on the 21st May, 1847, by putting Day in possession as aforesaid, who still remains in such possession. In 1840, before the institution of said ejectment suit, said Martha Phipps being then a widow, executed a quitclaim deed of her one third of said property to said Mary Rice. The demise in ejectment was laid on the 1st of December, 1839. The plaintiff’s title is as follows: On the 18th day of March, 1846, an attachment was levied on Charles Rice’s interest in the property in question, (supposed to be a right of tenancy by courtesy in two thirds of the property,) if any such right be had at the suit of Mark Isod, use, Sfc. v. Charles Rice. Judgment was entered upon said attachment in the circuit court of Adams county, at the November term, 1846, against said Charles Rice for the sum of $1,147.89. Venditioni exponas issued on said judgment returnable to the May term, 1847, of said circuit court, and the supposed interest of Charles Rice was duly sold to Robert Cochran, the plaintiff in this suit, on the 5th day of April, 1847,. for $500, and deed from sheriff Newman duly executed and delivered, purporting to convey to the purchaser any and all interest the said Rice had in said property at the date of said levy. It is admitted that the said Charles, and Mary, the wife of said Charles, are still alive. It is admitted that Charles Rice and Mary, his wife, had children of their marriage before the levying of said attachment. The court below gave judgment for the plaintiffs, for two hirds of the premises sued for. It is now a settled principle of law, that a husband cannot have tenancy by the courtesy initiate, where the property is held adversely during the coverture. 1 How. S. C. R. 54, 55 ; 3 Bouv. Bac. Ab. 13, and authorities there cited. There must be an actual seizin to entitle the husband to a tenancy by the courtesy. 4 Kent, Com., 4th ed., 27, 28, 29; Law Rep., June No., 1851, pp. 61,70, and authorities there cited; 1 How. S. C. Rep. 54, 55; 2 Bl. Com. 127. In the 4th volume, page 29, of his Commentaries, Chancellor Kent says, if the wife “ be owner of waste and uncultivated lands, not held adversely, she is deemed seized in fact, so as to entitle her husband to his right of courtesy.” And he immediately after gives the reason, which is as follows: “ The title to such property draws to it the possession; and that constructive possession continues in judgment of layv until an adverse possession be clearly made out; and it is a settled point in our courts that the owner of such lands is deemed in possession, so as to be able to maintain trespass for entering upon the land and cutting the timber.” This is a full answer and explanation to all the authorities cited on the other side, and, indeed, they are all referred to in note c, by the distinguished chancellor. The very nature of the lands made it impossible that there should be a pedis pos-sessio. But no authority has he produced, and it is believed none such exists, where it has ever been held that there must not be an actual seizin. True, there are some authorities in Connecticut which, to a superficial observer, might seem to sustain the converse of this doctrine. “ The law of courtesy, (says Chancellor Kent,) in Connecticut, is made to symmetrize with other parts of their system, and in that State, ownership without seizin is sufficient to govern the descent or devise of real estate.” 4 Kent, Com., 4th ed., 30. Such is not the law of this State; consequently the decisions from Connecticut have no application, or if they do, they are clearly in our favor, as it is only the peculiarity of their system that has induced the departure from the common law in this respect. The marital rights at common law only attach to property in possession. 9 Cow. 230. That the property in controversy was held “ adversely ” until the 21st May, 1847, there can be no doubt. 5 Pet. 320-356; 18 J. E. 40-44; lb. 355 ; 10 lb. 165; Den v. Alpough, 2 Penn. 446. See 16 Pet. 25-54; 9 Missouri, 490. An entry under a color or claim of title constitutes an adverse possession. 18 J. E. 355 ; lb. 44; 10 lb. 174. And it is not necessary for this purpose that the title under which the entry is made should be good and valid. 18 J. E. 355; ‘9 Wend. 511; 8 Cow. 589, 596; 3 Pet. 320; 18 J. E. 44; 9 Cow. 556, 557. Even a possession under an executory agreement for title may be adverse. 9 Cow. 536, 537. - And where a mere trespasser without any claim or pretence of title to land holds the same adversely to the title of the true owner, it is an ouster or disseisin of the latter. 5 Pet. 354. So where a person enters into lands under a deed or title, his possession is construed to be coextensive with his deed or title; and although it may turn out to be defective or void, yet the true owner will be disseized to the extent of the boundaries in such deed or title. 8 Cow. 589; 5 lb. 483; 13 J. E. 118; 18 lb. 355; 5 Pet. 354; 18 j. E. 44. ' See also 9 Cow. 557. In 18 J. E. 44, the court says: “ In Smith v. Lorillard, (10 J. E. 356,) Kent, C. J., said, that after a continued possession for twenty years, under pretence or claim of right, the actual possession ripens into a right of possession which will toll an entry; ” and in Smith v. Burtis, 9 J. E: 180, Spencer, J., said, (Van Ness, J. and Yates, J. concurring,) that “ it never had been considered necessary to constitute an adverse possession, that there should be a rightful title.” Whenever this defence is set up, the idea of right is excluded; the fact of possession, and the quo animo, it was commenced and continued, are the only tests. And in Jackson v. Ellis, 13 J. E. 120, the court said that “ it had been repeatedly ruled in this court, that an entry under a claim or color of title is sufficient to constitute an adverse holding. It is not necessary for this purpose that the title under which such entry is made should be a good and valid title.” 2 Caines, 183. In the case of Dennis v. Heath, 11 S. & M. 206, this court held expressly that a recovery in ejectment is not a breach of the covenant of warranty. 11 S. & M. 218. See also 7 J. R. 376; Mart. & Yerg. 55. It does not, then, destroy or terminate the adverse possession; for if it did, it would be a breach of the covenant of warranty. The case of Elsworth v. Cooke, 8 Paige, Ch. R. 646, will be relied on, as sustaining a different principle from that of Dennis v. Heath, just cited, as the Chancellor says: “ The recovery in ejectment might have constituted a seizin in law, if the wife had died before the execution of the writ of possession. But if the recovery in ejectment was not sufficient, the judgment in partition, settling the rights of all the parties, was sufficient.” Such being the language of the chancellor, it is hardly to be supposed this court will overrule the principle of its own judgment in Dermis v. Heath, 11 S. & M. R. 206. And, moreover, the Supreme Court of New York, in the recent case of Tayloe v. Gould et al., says, that “ to entitle the husband to his courtesy, the wife must be seized in fact and in deed. It is not sufficient that she has a seizin in law of an estate of inheritance.” Law Rep., June No., 1851, p. 70, and filed with this brief, citing 4 Kent, 29; 5 Cow. R. 74, 98; 13 J. R. 260; 16 J. R. 96, and many others. ' We respectfully solicit the attention of the court to this late case in New York, as well as its own decision in Dennis v. Heath, 11 S. & M. R. 206. From the foregoing authorities, it is very clear- that the mere recovery in ejectment of itself does not constitute or give a seizin, and that the adverse possession continues until the execution of the writ of possession, or the party makes an actual peaceable entry. The judgment simply authorizes the sheriff to put him in actual possession. The possession, then, of Holton and Barlow, and those claiming under them, having been adverse, and there having been no entry until the execution of the writ of possession in May, 1847, which was long after the attachment and sale, said attachment and sale' are void; consequently, no title passed to the purchaser, because the possession at the time, and during the marriage, was adverse, and so continued until the execution of said writ.of possession. 1st. That Charles Rice was, at the date of the levy, tenant by courtesy initiate, of two thirds of the property described in the declaration. 2nd. That the tenancy by courtesy initiate, is a legal estate in the land, and passed by the sheriff’s deed to the plaintiff below. The common law requisites to tenancy by courtesy, are marriage, seizin of the wife, issue, death of the wife. 1 Cruise, Dig. 146. Until death of the wife, the husband is tenant by courtesy initiate. Tenancy by courtesy initiate is a legal estate in the land. Adair v. Lott, 3 Hill, 186; Elsworth v. Cooke, 8 Paige, 643; Van Duzer v. Van Duzer, 6 lb. 366; Schemerhorn v. Miller, 2 Cow. 439; 15 Pick. 23; 16 lb. 260; 17 lb. 438. It is recognized by our statutes. H. & H. 644. It is sold under execution in New York, Massachusetts, and in Pennsylvania. Roberts v. Whiting, 16 Mass. 189; McKee v. Proud, 3 Dallas, 488; 1 Yeates, 428, and cases first above cited. Doubtful whether in this State any actual seizin is necessary. Davis v. Mason, 1 Peters, 503; 4 Day, 298; 8 Johns. R. 262, (Chancellor Kent); 1 Stew. 590. By our statute, the sheriff sells all the right, title, and interest and claim of the defendant, either in law or equity. How. & Hutch. 644, § 48. The right of a party, holding under a bond for title, was sold under execution, and the sale sustained by the high court. Thompson v. Wheatley, 5 S.'& M. 499. The language of our dower act is “ seized and possessed.” Yet our court has said, that actual or constructive seizin is sufficient. Ware v. Washington, 6 S. & M. 740. Chancellor Kent, in 8 J. R. 270, cites and approves the case of Sterling v. Penlington, from Viner, and says, after a review of authorities: “ These cases show that actual entry, or pedis possessio, is not absolutely necessary, and that if the party is constructively seized in fact, it will be sufficient.” It is admitted, that, at common law, actual seizin by the wife during marriage was a requisite. But see Davis v. Mason, 1 Peters, 507, where the court say, that the common law, even in the time of Lord Coke, had begun to untrammel itself of the rigorous rule. In this case, the title of Rice’s wife to. two thirds of this land was complete without entry. It descended to her from her father. Her first husband, with her assent, alienated it by deed, good during the life of the first husband, and put the purchaser in possession. This act of the first husband did not disseize her. Why ? Because we have a statute expressly to prevent such disaster. How. & Plutch. 359, § 71. After the death of Phipps and Haile, the first husbands, Holton and Barlow re-remained in possession, holding over. This holding over was not an adverse possession. Vcurick v. Jackson, 2 Wend. 203; Jackson v..Cairns, 20 J. R. 305; Jackson v. Rogers, Caine’s Cases, 314. Holton and Barlow went into possession under the marital rights of the first husband; after the death of these husbands, they remained in possession as tenants at sufferance. They did not begin to hold adversely until ejectment brought, which was after the marriage with Rice. There was, therefore, in fact, actual seizin, for tenancy at sufferance, like all other tenancies, is the seizin of the landlord. Tenant for life, holding over, is tenant by sufferance. 2 Black. Comm. 149; 6 Hill, 194; 20 J. R.301; 2 Wend. 166; Adams, in Eject. There is another way still, in which we can show a sufficient seizin in Mrs. Rice, after her marriage with Charles Rice. It is this. Gibson and wife, who have never disputed nor disturbed the possession of Holton and Barlow, as to the one-third derived from them, were tenants in common, or coparceners, with the other two sisters. The entry and possession of one tenant in common, is the entry and possession of the others. Nothing terminates it but actual ouster by one tenant in common of his co-tenant. Now there is no pretence that this ouster took place until ejectment brought after the marriage. Upon this view of the case, see an interesting case of Sterling v. Penlington (from Viner, opinion of Lord Hardwicke), cited with approbation by Chancellor Kent, in the case of Jackson v. Sellick, 8 J. R. 270. In that case, a daughter was entitled to enter upon the death of her brother as tenant in common with her mother. She applied to enter, and was resisted by her mother. Pending the litigation, the daughter died. Notwithstanding the daughter died without having effected the entry, the claim of the husband, as tenant by the courtesy, was allowed. We have thus shown, 1st. That the wife had actual seizin, upon descent cast before her first marriage, and that the alienation by her first husband did not work a disseisin, because of our statute. 2d. That the purchasers from the first husband, holding over, were mere tenants at sufferance, holding under the wife, until ejectment brought by Rice against them after the second marriage. 3d. That the possession of Gibson’s third, on the doctrine of co-tenancy, is an actual seizin of the co-tenant, Rice and wife. But, we may well ask, what right has Rice to say that he was never tenant by the courtesy, when he has recovered in ejectment upon that very title with a demise laid in December, 1839 ? He was co-plaintiff upon that title, together wit hhis wife and Mrs. Phipps, and Mrs. Phipps having conveyed her interest to Mrs. Rice, he would unquestionably be entitled to the whole proceeds of an action for mesne profits up to the date of the levy. In an action for some mesne profits, the confession of entry by the defendant in ejectment is sufficient to enable the plaintiff to recover. Brown v. Galloway, 1 Peters, Cir. Ct. R. 261. The record in ejectment is evidence of title from the time of demise laid. 4 Com. 329; 4 Marshall, 388, new series. Mrs. Phipps’s interest vested in Mrs. Rice before our levy. The laws in relation to the rights of married women do not affect the case. Baynton v. Finnall, 4 S. & M. 192. The court need have no apprehension that there is any hardship in this case against Rice and wife. We ask their attention to the facts disclosed in the original ejectment suit, 4 H. U. S. R. 224, which show what an iniquitous speculation has been made by this second husband, setting aside a conveyance of his wife, after full value received and vast sums expended by the purchasers in improvement. Such are the risks ran in the employment of stupid or careless scriveners. By way of conclusive answer to the point made by plaintiff in error, that the possession of Plolton and Barlow was that of persons claiming a fee, and, therefore, adverse, the court will always presume the possession of an estate to be legal until the contrary is proven. Lord Denman. — “ If the persons actually in possession could be shown to have held under him through whom the plaintiff claims, the possession of the former might be regarded as the possession of the latter.” Doe v. Bramston, 3 Adol. & Ellis, 63; 30 Com. Law R. 31; Doe v. Hartrow, lb. 67, p. 32. Doe. v. Swiees, 5 Barn. & Aid. 687, is a very strong ease’— ejectment by mortgagee upon a special verdict; more than twenty years had elapsed since default in payment of the money, and the mortgagor had, in the mean time, levied a fine on the premises; and no payment within that time had been made, ñor any other fact to recognize the title of the mortgagee. Judgment for plaintiff, and statute of limitations did not run. Abbott, C. J. — “I am of opinion that this must be considered as an occupation by the permission of the mortgagee.” Bay ley, J. — “I am of the same opinion. The argument proceeds on the ground that the mortgagor was in possession by wrong; but the special verdict does not find a wrongful possession.” 7 Com. Law, 233; Doe v. Hull, 2 Dowl. & Ryl. 38; 16 Com. Law, 71. * Abbott, C. J. — “Mr. Hull did not take possession wrongfully ; he only wrongfully continued in possession. He came in under right and title, which remained good during the life estate of Souter’s widow, but ceased at her death; and from that period he continued in possession wrongfully. But what is the effect of that ? No more than that he is tenant by sufferance to Souter, who permitted him for a period to remain in possession. I know of no authority which says that a mere wrongful possession divests the estate of the party against whom the possession is adversely held.” Bayley, J. — “ I am of the same opinion. In order to bar the power of devising a right of entry, there must be an actual disseisin of the devisor; a mere adverse possession will not suffice; he must be completely ousted of the freehold. The relation of Hull to Souter is that of landlord and tenant; the former was tenant by sufferance to the latter from the moment of Mrs. Souter’s decease. Mr. Hull was only a disseizor in one way, namely, at the election of Souter. See Smith v. Polk, 3 Barn. & Adol. 738; 23 Eng. Com. Law; 4 Johns. R. 156; 1 Johns. Ca. 123. Spencer, J. — “ The plaintiff' must be regarded as tenant by sufferance, since he entered by Green’s permission, and continued in after Green’s right to the possession was at an end. A tenant at. sufferance cannot maintain trespass against his landlord, for as against him he has no legal right of possession.” 4 J. R. 156. If' a parcener or joint tenant convey his part to A., he and the other parcener or joint tenant are tenants in common. 4 Com. Dig. 104, vol. 4. There must be an actual ouster by one tenant in common to entitle his co-tenant to maintain ejectment against him. 4 Comyn’s Dig. 114; 5 Burrows, 2608. If the husband, after issue, makes a feoffment, the feoffee shall hold during the life of the husband. 4 Comyn’s Dig. 58; 3 Dali. 489. For, says Lord Coke, that the estate, at the time of the feoffment, was an estate of tenancy by the courtesy initiate, and not consummate. The case is that published by Cruise, vol. 4, p. 147. If a man marries a woman seized in fee, is dis-seized, and then has issue, and the wife dies, he shall enter and hold by the courtesy. The wife is not dead, but during her life the tenancy is initiate.