This is true where the husband has acquired no estate by the curtesy, and is seised merely in the right of the wife of her estate. Such are the cases of Guion v. Anderson, 8 Humph. Rep. 298; Melius v. Snowman, 8 Shep. Rep. 201.
And if the husband is tenant by curtesy, as he and his wife are seised of the fee in right of the wife, the action must be brought by husband and wife, and a joint seisin in fee alleged in them in her right. Anon. Bills. 21. Their joint right of action is barred by the lapse of twenty years after it accrues. But it by no means follows that the reversionary right of the wife, accruing in possession after the estate of her husband has ceased, is also barred. It is well settled, that the same party may have several and successive estates in the same property, and several rights of entry by virtue of those estates, and one of those rights may be barred without the others being affected. Hunt v. Burn, 2 Salk. 422; Wells v. Prince,9 Mass. Rep. 508; Stevens v. Winship, 1 Pick. Rep. 318; Tilson v. Thompson, 10 Pick. Rep. 359.
And every reason, which can exist in favor of the right of any reversioner, applies equally in this case, namely, that a reversioner has, as such, no right of entry and no right of action during the particular estate, and consequently is not barred until twenty years after his own right of entry accrued. 2 Sugd. V. & P. 353; 3 Steph. N. P. 2920, n. 10; 9 Mass. Rep. 508; 1 Pick. Rep. 318; 15 Mass. Rep. 471; 10 Pick. Rep. 359; 4 Johns. Rep. 390, before cited. Besides, the wife by reason of her disability can make no entry to revest her estate during the coverture. Litt. p. 403; Co. Litt. 246 a. Coke says, in express terms, "after coverture, she (the wife), cannot enter without her husband."
In Jackson v. Johnson, 5 Cow. Rep. 74, and Heath v. White, 5 Conn. Rep. 228, this question arose, and was decided in accordance with our views, and we think upon sounder principles than the cases in Massachusetts, to which we have referred.
We have compared the provisions of the Revised Statutes with the older statutes, and do not perceive, that there is, as to the point in question, any difference in their effect. Under neither would the plaintiff propose to claim any advantage from the proviso. His ground is not that the ancestor was a married woman, when her right accrued; but that her marriage and the birth of one or more children had vested a life estate in her husband, and that the disseisin was done to him, and that no right of action accrued to her in virtue of the reversionary interest, under which her heirs now claim, until she became a widow, and the husband's estate had terminated; and that the action is brought within twenty years after that event. This appears to us a correct view of the case, and of the law; and the verdict must, therefore, be set aside and a
New trial granted.1
2 54 New York, 280. - 1873. [Reported herein at p. 641.]
1 See Wheeler v. Hotchkiss, 10 Conn. 225, reported infra, p. 648. - Ed.
2 The last paragraph on p. 644 is all that need be read at this point. - Ed.
13 Connecticut, 83. - 1839.
Ejectment. Plaintiffs are the children and heirs-at-law of Ann Watson, deceased. Their father, John Watson, is still alive, but plaintiffs offered in evidence a writing under his hand and seal containing the following declaration and disclaimer: "I have not, at any time hitherto, and now do not claim, demand, possess or in any manner or to any extent whatever, have, or pretend to have, any right, title, or interest in [the premises in question], but do now fully, absolutely and without any reservation, disclaim and reject any and all right, title and interest in the same, which I might or could have had, by operation of law or otherwise, by reason of my surviving my said wife, or any title to said premises which she had during her life." The writing was rejected by the court. Verdict for defendant. Plaintiffs move for a new trial.
Waite, J. - The object of a disclaimer is, to prevent an estate passing from the grantor to the grantee. It is a formal mode of expressing the grantee's dissent to the conveyance before the title has become vested in him. In some cases, it may be highly proper; as where a deed is made conveying an estate to one for life, with a remainder to another in fee. Here, in the absence of all evidence to the contrary, the law would presume the assent of the grantee in remainder, upon delivery of the deed to the grantee for life, for the benefit of both. But if the remainderman chooses not to take the estate, he may disclaim, and thereby remove all presumption of assent. So, where a deed is executed to several persons, and delivered to one for the benefit of all, if one dissents, he may disclaim, and furnish evidence that his share still remains in the grantor. Tread-well et al. v. Buckley et al., 4 Day, 395.
But if the grantee once assents, and the title thereby becomes vested in him, he cannot, by any disclaimer, revest the estate in the grantor. For if he could, the disclaimer would have the effect of a deed, which it cannot have; the object of the latter being to transfer property, - of the former, to prevent a transfer.
But in a case of descent, the heir cannot, by any disclaimer, prevent the estate from passing to him. It vests in him immediately upon the death of the ancestor; and no act of his is required to perfect his title. He cannot, by any act, cause the estate to remain in the ancestor; for the latter is incapable of holding it after his death. Nor can he, by a disclaimer, transfer the estate to any other person, as the heir of the ancestor: for, as has already been observed, the object of a disclaimer is not to convey, but to prevent a conveyance. He is, therefore, in the same situation, upon the death of the ancestor, as a purchaser who has assented to the conveyance. In both cases, a transfer can only be made by some instrument adapted to the conveyance of real estate.