I. What estates and interests in land are real; what are personal. 1. Leasehold Interests in Land.
33 Connecticut, 314. - 1866.
Submission to the Superior Court upon an agreed statement of facts. The widow, executor and heirs-at-law of Horace Goodwin, deceased, are the parties to the submission. The case was reserved for the advice of the Supreme Court of Errors. The facts appear in the opinion.
Park, J. - Horace Goodwin, late of Hartford, deceased, after devising and bequeathing certain property to his wife, declared his purpose to be that the devise and bequest should not bar her right of dower in his estate.
A part of the property that he died possessed of consisted of an estate for the term of nine hundred and ninety-nine years, with an annual rent of forty-six dollars; and the first question submitted for our consideration is, whether the wife is entitled to dower in this part of his estate.
If an estate for so long a term of years can be regarded as real estate, then dower should be allowed, otherwise not. Revision of 1866, p. 421. The general principle is, that an estate for years is less than a freehold, and is nothing more than a chattel real, and is classed as personal property. 1 Swift Dig. 87, 167. Does a long term of years stand upon different ground in this respect from a short one? Of course the value of the reversionary interest depends upon the length of time the estate for years is to continue, and such value in the present case is exceedingly small, - too small for any substantial benefit; but does the difference in the value of reversionary interests make any difference in principle ?
If this estate had been created nine hundred and ninety years ago, it would be conceded that Horace Goodwin would have had only a chattel interest. If then at the commencement it is to be regarded as a fee simple, at what time will it change to a chattel real? The claim of the plaintiff involves the necessity of fixing a time, and the absurdity of holding that immediately before the time shall arrive the estate will be a fee simple, and immediately after a chattel interest merely. We are unable to discover any difference in principle in this class of estates, whether they are to endure for a short or a long period of time, and we are satisfied that no distinction can be found in the common law. It is true that in the case of Brainard v. The Town of Colchester 31 Conn. 407, Judge Dutton, in giving the opinion of the court, says in regard to an estate like the one under consideration, with the exception that in that case a gross sum was paid as the consideration for the term: - "For all practical purposes it is a fee simple. The reversion becomes a mere imaginary estate." The learned judge used this language in reference to the extent of the estate, and the fact that substantially it contained all the property, which is obviously true. It is equally obvious that there is some value to the reversionary interest, for it will constantly increase, and at the end of the nine hundred and ninety-nine years will be equal in value to the entire property. The learned judge did not mean to declare that, in the administration of justice between party and party, the law regards such an estate as a fee simple, and that it should be treated as such, which is the question now before us. Judge Swift, in his Digest, vol. 1, page 87, says: - "A lease for a thousand years is considered only as an estate for years, and the lessee has only a chattel interest, which by the common law goes into the hands of his executor or administrator at his decease." Washburn in his first volume on Real Property, page 153, says: - "If, therefore, the estate of the husband be a term of years, his wife cannot claim dower out of it at common law, no matter how long it is to continue, nor though it be renewable forever." The cases of Ware v. Washington, 6 Smedes & Marsh, 737, and Spangler v. Stanler, 1 Maryland Ch. Dec. 36, are to the same effect. See also 4 Kent Com., 35, 40, and Cruise's Digest, title Dower. We are referred to no case where the contrary doctrine has expressly been held, but a case in the second of Root's Reports, page 15, has been cited, where the levy of an execution upon an estate for the term of nine hundred and ninety-nine years as real estate was held good. But this decision was made on the ground that the case came within the spirit of the statute in regard to the levy of executions on real estate, and that without such construction the property would be exempt from execution.
On the whole we are satisfied that the common law deprives the plaintiff of the right of dower in the Market street property, and so we advise the Superior Court. [Certain other questions are considered in the opinion; these are omitted here. ]
13 Ohio, 335. - 1844.
Certiorari to the Superior Court of Cincinnati.
Roosa and each of the other defendants herein obtained judgments against T. B. Coffin at the October term, 1842. Executions were issued on each of these judgments within that term upon lands held by Coffin on lease for ninety-nine years, renewable forever. The Northern Bank of Kentucky recovered a judgment against Coffin at same term, which was levied on the same property in June, 1843. The property was sold on the Roosa execution and the money brought into court for distribution among the judgment creditors. Defendants claim that the surplus fund in court should be appropriated to the satisfaction of their judgments, excluding the Bank, while the Bank, on the other hand, claims a pro rata share with them.
The court below held that defendants by priority of levy had obtained priority of lien, and excluded the Bank from any share of the fund.
Birchard, J. - Two questions arise in this case:
1. Are judgments liens upon permanent leasehold estates for one year?
2. Can one judgment, by a levy upon lands within ten days, obtain a preference over other judgments rendered at the same time, and levied within the year?