The demurrer was properly sustained, and the judgment is affirmed.

(3.) Estovers. Emblements. Improvements and Fixtures. Waste.1

c. Termination of Life-estates.

(1.) The Natural Termination.2

Roseboom V. Van Vechten

5 Denio (N. Y.), 414, 424. - 1848.

[Reported herein at p. 575.]

1 See cases under these headings in Part III. - Ed.

2 See note at p. 580, supra, on producing cestui que vie. - Ed.

(2.) Forfeiture. JACKSON ex dem.

Mccrea V. Mancius

2 Wendell (N. Y.), 357. - 1829.

Ejectment by the heir-at-law of Eve McCrea to recover certain lands of hers sold by her husband while tenant by the curtesy initiate. Verdict for plaintiff, subject to the opinion of this court.

By the Court, Savage, C. J. - * * * The marriage of John McCrea with Eve, and the birth of a child, gave him an interest in the premises as tenant by the curtesy initiate. * * * The father being dead, and the mother also, the heir of the mother is entitled to recover, unless he is barred by the deed of his father, or by lapse of time.

What title passed by the deed of John McCrea? It is a general rule that no one can convey a better title than he has; and as it appears that he had an estate for his own life, the fair presumption would be that he intended to convey the estate which he had in the premises. * * *

Could not, then, a tenant by the curtesy convey in fee without having an estate in fee? The Parliament of Great Britain supposed that such an act might be done, and guarded against it by statute 32 Henry 8, ch. 28, which provision was re-enacted in this State at an early day (1 R. L. 181, 2, 3), by which it is enacted, that no fine, feoffment or other act of the husband in relation to the freehold or inheritance of his wife, shall prejudice such wife or her heirs. * * *

I conclude, therefore, that there is nothing in the fact of McCrea's conveying a fee, to show that he had the capacity to convey such an estate when it is shown that he had only an estate for life, and when, also, the form of conveyance used by him carried only such estate as the grantor had. If a greater estate is claimed under him, it should not be left to presumption so ill sustained, to prove that he had capacity to grant such estate.

Is the lessor barred by lapse of time? It is contended that the lessor's right of entry (if any) accrued in 1780, at the death of his mother, and as more than twenty years elapsed before suit brought, that therefore this action cannot be maintained. It is said that John McCrea, having only an estate for life, by attempting to convey a greater estate than he had, forfeited his estate, and that the heir of the wife might have entered upon her death. In this point there are two subjects of inquiry presented: 1. Did the tenant by the curtesy forfeit his estate by attempting to convey a fee? and, 2. If he did, when did the heir's right of entry accrue? Was it on the death of his mother or his father?

1. Estates for life are considered at common law as strict feuds, and are forfeitable for certain causes If tenant for life, including tenant by the curtesy, takes upon him to convey a greater estate than he has, in such a manner as to divest the estate in reversion or remainder, such conveyance will operate as a forfeiture of his estate for life, and the reason given (a very singular one in this country), is because it is a renunciation of the feudal connection between him and his lord. 1 Cruise, 122, § 36, and 173, § 31. Co. Litt. 252,3. Com. Dig. Forf. a. I. The form of conveyance for this purpose must be such as to divest the estate of the reversioner or remainderman, and these were three: Feoffment with livery of seisin, fine, and common recovery; but a conveyance by lease and release, or bargain and sale, is no forfeiture.

If the conveyance in this case was by feoffment, the injury is one which is termed a discontinuance, the entry of the feoffee being lawful during the continuance of the particular estate, but by his continuance in possession after the death of the feoffor, the legal estate of the heir was gone, or at least suspended, and for a while discontinued. When the right of entry is thus lost, and the party can only recover by action, the possession is said to be discontinued. By the common law, the alienation of a husband who was seized in right of his wife, worked a discontinuance of the wife's estate, till the statute 32 Hen. 8, ch. 28, provided that no act by the husband alone should work a discontinuance of, or prejudice the inheritance or freehold of the wife. Jacob's Law D. tit. Discontinuance.

In order to prove a forfeiture, therefore, in the conveyance by McCrea, it should have been shown to have been a feoffment with livery of seisin. As this mode of conveyance is nearly obsolete in England and very little used, and the more common species of assurance being lease and release and bargain and sale, we will not presume that a feoffment with livery was executed in this instance. It is equally probable that one of the other modes of conveyance was adopted, which, though in terms purporting to convey a fee, yet in reality transfer no more or greater estate than the grantor had. The fact, then, of a forfeiture is not satisfactorily shown. But suppose the conveyance to have been a feoffment, 2. Did a right of entry accrue? and was the heir bound to enter? Littleton says (§ 594), "If a man be seized of land as in right of his wife, and thereof enfeoff another and dieth, the wife may not enter, but is put to her action, the which is called cut invito." But this is altered, says Coke, since our author wrote, by the statute 32 Henry 8, by the provisions of which statute, the wife and her heirs, after the decease of her husband, may enter into the lands or tenements of the wife, notwithstanding the alienation of her husband.

From what has already been said, and from the cases referred to, it would seem that the criterion of the forfeiture is the actually divesting of the estate of the remainderman or reversioner - the passing an estate which the grantor has no right to pass; and as the statute has interposed in this case to prevent such an effect from the feoffment of the husband, I think it follows that a feoffment in such case by the husband of his wife's estate does not work a forfeiture. It is, perhaps, not material to consider that question; but the more important inquiry will be, whether the heir is bound to enter during the life of the tenant for life, supposing he has a right so to do. The statute has been understood as refusing the right of entry till the husband's death: "And the heirs of the wife shall not be barred of their action after the death of their father and mother by the deed of their father, if they demand by action the inheritance of their mother which their father did alien in the lifetime of their mother." I. R. L. 183, § 7. Lord Coke seems to understand the statute, that no right of entry exists till the death of the husband. He is so understood by Jacob in his dictionary, who says, "Though if the husband hath issue, and maketh a feoffment in fee of his wife's land, and his wife dieth, the heir of the wife shall not enter during the husband's life, neither by the common law, nor by the statute," citing I Inst. 326.