(q) 3& 1 Will. IV. c. 106. (h) Sect. 2.
(i) Appendix (B), ante, p. 449.
But, by cariying our investigations a little further, wo may be disposed to doubt, if not to deny, that such is the law; not that the conclusion drawn is unwarranted by the authorities, but the authorities themselves may, perhaps, be found to be erroneous. Let us now compare the law of curtesy of an estate tail with the law of curtesy of an estate in fee simple.
In the section of Littleton, which we have already quoted (l), it is laid down, that, if a man taketh a wife seised as heir in tail especial, and hath issue by her, born alive, he shall, on her decease, be tenant by the curtesy. And on this Lord Coke makes the following commentary: "And here Littleton intendeth a seisin in deed, if it may be attained unto. As if a man dieth seised of lands in fee simple or fee tail general, and these lands descend to his daughter, and she taketh a husband and hath issue, and dieth before any entry, the husband shall not be tenant by the curtesy, and yet, in this case, she had a seisin in law; but, if she or her husband had, during her life, entered, he should have been tenant by the curtesy" (m). Now, it is well known that the descent of an estate tail is always traced from the purchaser or original donee in tail. The actual seisin which might he obtained by the heir to an estate tail never made him the stock of descent. The maxim was, "Possessio fratris de feudo simplici facit sororem esse haeredem." Where, therefore, a woman who had been seised as heir or coparcener in tail died, leaving issue, such issue made themselves heir not to her, hut to her ancestor, the purchaser or donee; and whether the mother did or did not obtain actual seisin was, in this respect, totally immaterial. When actual seisin was obtained, the issue still made themselves heir to the purchaser only, and yet the husband was entitled to his curtesy. When actual seisin was not obtained, the issue were heirs to the purchaser as before; but the husband lost his curtesy. In the case of an estate tail, therefore, it is quite clear that the question of curtesy or no curtesy depended entirely on the husband's obtaining for his wife an actual seisin, and had nothing to do with the circumstance of the wife's being or not being the stock of descent. The reason, therefore, before mentioned given by Lord Coke, and repeated by Blackstone, cannot apply to an estate tail. An actual seisin could not have been required in order to make the wife the stock of descent, because the descent could not, under any circumstances, be traced from her, but must have been traced from the original donee to the heir of his body per formam doni.
(l) Sect. 35.
(m) Co. Litt. 29 a.
Again, if we look to the law respecting curtesy in incorporeal hereditaments, we shall find that the reason above given is inapplicable; for the husband, on having issue born, was entitled to his curtesy out of an advowson and a rent, although no actual seisin had been obtained, in the wife's lifetime, by receipt of the rent or presentation to the advowson (n). And yet, in order to make the wife the stock of descent as to such hereditaments, it was necessary that an actual seisin should be obtained by her(o). The husband, therefore, was entitled to his curtesy where the descent to the issue was traced from the ancestor of his wife, as well as where traced from the wife herself. In this case also, the right to curtesy was, accordingly, independent of the wife's being or not being the stock from which the descent was to be traced.
(n) Watk. Descents, 39 (47, 4th ed.)
(o) Watk. Descents, 6O (67, 4th ed.)
We are driven, therefore, to search for another and more satisfactory reason why an actual seisin should have been required to be obtained by the wife, in order to entitle her husband to his curtesy out of her lauds; and such a reason is furnished by Lord Coke himself, and also by Blackstone. Lord Coke says (p), " Where lands or tenements descend to the husband, before entry he hath but a seisin in law, and yet the wife shall be endowed, albeit it be not reduced to an actual possession, for it lieth not in the power of the wife to bring it to an actual seisin, as the husband may do of his wife's land when he is to be tenant by curtesy, which is worthy the observation." It would seem from this, therefore, that the reason why an actual seisin was required to entitle the husband to his curtesy was, that his wife may not suffer by his neglect to take possession of her lands; and, in order to induce him to do so, the law allowed him curtesy of all lands of which an actual seisin had been obtained, but refused him his curtesy out of such lands as he had taken no pains to obtain possession of. This reason also is adopted by Blackstone from Coke: "A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable : for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands; which is one reason why he shall not be tenant by the curtesy but of such lands whereof the wife, or he himself in her right, was actually seised in deed" (q). The more we investigate the rules and principles of the ancient law, the greater will appear the probability that this reason was indeed the true one. In the troublous times of old, an actual seisin was not always easily acquired. The doctrine of continual claim shows that peril was not unfrequently incurred in entering on lands for the sake of asserting a title; for, in order to obtain an actual seisin, any person entitled, if unable to approach the premises, was bound to come as near as he dare (r). And "it is to be observed," says Lord Coke, "that every doubt or fear is not sufficient, for it must concern the safety of the person of a man, and not his houses or goods; for if he fear the burning of his houses or the taking away or spoiling his goods, this is not sufficient" (s). That actual seisin should be obtained was obviously most desirable, and nothing could be more natural or reasonable than that the husband should have no curtesy where he had failed to obtain it. Perkins seems to think that this was the reason of the rule; for in his Profitable Book he answers an objection to it, founded on an extreme case. "But if possession in law of lands or tenements in fee descend unto a married woman, which lands are in the county of York, and the husband and his wife are dwelling in the county of Essex, and the wife dieth within one day after the descent, so as the husband could not enter during the coverture, for the shortness of the time, yet he shall not be tenant by the curtesy, &c; and yet, according to common pretence, there is no default in the husband. But it may be said that the husband of the woman, before the death of the ancestor of the woman, might have spoken unto a man dwelling near unto the place where the lauds lay, to enter for the woman, as in her right, immediately after the death of her ancestor," etc. (t). This reason for the rule is also quite consistent with the circumstance that the husband was entitled to his curtesy out of incorporeal hereditaments, notwithstanding his failure to obtain an actual seisin. For if the advowson were not void, or the rent did not become payable during the wife's life, it was obviously impossible for the husband to present to the one or receive the other; and it would have been unreasonable that ho should suffer for not doing an impossibility, the maxim being "impotentia excusat legem." This is the reason, indeed, usually given to explain this circumstance; and it "will be fouud both in Lord Coke (u) and Blackstone (x). This reason, however, is plainly at variance with that mentioned in the former part of this paper, and adduced by them to explain the necessity of an actual seisin, in order to entitle the husband to his curtesy out of lands in fee simple.