It is among the facts found by the learned justice before whom the action was tried, that the possession of the grantee in that deed, and of his assign, was actual and exclusive. It is found, also, that neither the wife of the testator, nor the testator himself, did at any time after the execution of that deed have actual possession of the premises, or receive the rents and profits thereof. And these findings are upheld by the proof.
There is no escape from the conclusion that there was lacking one of the essentials in a tenancy by the curtesy in favor of the testator. This defect in the plaintiff's case being fatal, it is not necessary that we examine the other questions involved.
The judgment of the court below should be affirmed, with costs to the respondent.
2 Ohio State, 308. - 1853.
Thurman, J.- The decision of this cause depends upon the answer that shall be given to the following question: Is a man entitled to curtesy in lands, the title to which descended to his wife during coverture, but which were in the actual possession of an adverse claimant from the time her title accrued until her death. It is very clear that, by the strict rule of the common law, he is not; and for the reason that neither the wife, nor the husband in her right, was, at any time during coverture, actually seised of the premises. Four things, according to the common law, are necessary to create an estate by the curtesy, viz.: Marriage, seisin of the wife, issue, and death of the wife. Co. Lit. 30 a. And where the wife's title is derived by inheritance, or any other mode requiring an entry to perfect it, the seisin must be in deed, and not merely in law. Co. Lit. 29 a. ; Jackson v. Johnson, 5 Cow. 98.
But it is contended, that in Ohio seisin is unnecessary; and this leads us to inquire: 1. What is the reason of the common-law rule requiring seisin? 2. Does the reason exist in this State? 3. If it does not, is the maxim applicable, "Ccssante ratione, cessat ipsa lex," the reason ceasing, the law itself ceases ?
The books generally, and with but few exceptions, give but one reason for the rule making seisin indispensable to curtesy, namely, that as, by the common law, livery of seisin was necessary to the transfer of a freehold estate by deed, and an entry necessary to perfect the title to such an estate, of an heir or devisee, it followed that unless the wife, or the husband in her right, was actually seised, her issue could never, as her heirs, inherit the lands; for owing to the want of actual seisin, she never acquired an inheritable estate. But unless she had an estate of inheritance there could be no curtesy, as it was indispensable to the existence of curtesy that the mother be seised of an estate which might descend to her heirs, and "the tenancy by curtesy is an excrescence out of the inheritance." 3 Bac. Abr. 11 (Bouvier's edition).
Thus, Littleton says (§ 52): "And memorandum that, in every case where a man taketh a wife seised of such an estate of tenements, etc., as the issue which he hath by his wife, may by possibility inherit the same tenements of such an estate as the wife hath, as heire to the wife; in this case, after the decease of the wife, he shall have the same tenements by the curtesie of England, but otherwise not."
Commenting on the above expression, "as heire to the wife," Coke says: 'This doth implie a secret of law, for except the wife be actually seised, the heire shall not (as hath been said) make himself heire to the wife; and this is the reason that a man shall not be tenant by the curtesie of a seisin in law." Co. Lit. 40a.
And, in illustration of the law that a wife must have an estate inheritable by her issue, the following case is put: "If lands be given to a woman and to the heires males of her body, she taketh a husband and hath issue a daughter and dieth, he shall not be tenant by the curtesie; because the daughter by no possibility could inherit the mother's estate in the land; and therefore where Littleton saith, issue by his wife male or female, it is to be understood, which by possibility may inherit as heir to her mother of such estate." Co. Lit. 29 b.
Blackstone puts the same case, and adds: "And this seems to be the principal reason why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised, because, in order to entitle himself to such an estate, he must have begotten issue that may be heir to the wife; but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seised." 2 Bla. Com. 128.
In a subsequent passage, he suggests an additional reason. It is as follows: "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." 2 Bla. Com. 132. The only authority referred to by Blackstone, in support of the above, is Co. Lit. 31, where the diversity between dower and curtesy is noticed, but no such reason as Blackstone gives for denying curtesy is stated, although it may be inferred.
What Coke says is as follows: "For a woman shall be endowed of a seisin in law. As 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 the curtesy, which is worthy the observation."
As before observed, it is only by inference that this passage supports Blackstone's remark. It is to some extent fortified, however, by the following language in 7 Viner's Abr. 149, namely: "Feme shall be endowed of a seisin and possession in law, without seisin in deed, quod nota; for otherwise it is of tenant by the curtesy, and the reason seems to be, inasmuch as the baron may enter in jure uxoris, but the feme cannot compel her baron to enter into his own land."