On the other hand, the following extract from 3 Bac. Abr. 12 , is certainly opposed to the existence of this reason, as the idea is rejected that the allowing or disallowing curtesy is dependent on the ability or inability, industry or negligence, of the husband.
"But now of such inheritances, whereof there cannot possibly be a seisin in fact, a seisin in law is sufficient; and therefore if a man seised of an advowson or rent in fee, hath issue a daughter, who is married and hath issue, and he dieth seised, and the wife dieth likewise before the rent becomes due, or the church becomes void, this seisin in law in the wife shall be sufficient to entitle her husband to be tenant by the curtesy, because say the books, he could not possibly attain any other seisin, as indeed he could not; and then it would be unreasonable he should suffer for what no industry of his could prevent. But the true reason is, that the wife hath these inheritances which lie in grant, and not in livery, when the right first descends upon her; for she hath a thing in grant when she hath a right to it, and nobody else interposes to prevent it."
In Davis v. Mason, I Pet. 507, the foundation of the rule is thus stated in the opinion of the court: "As it relates to the tenure by curtesy, the necessity of entry grew out of the rule, which invariably existed, that an entry must be made in order to vest a freehold (Co. Lit. 51,) and out of that member of the definition of the tenure by curtesy which requires that it should be inheritable by the issue. When a descent was cast, the entry of the mother was necessary, or the heir made title direct from the grandfather, or other person last seised."
A careful examination of the authorities makes it quite apparent that this is a correct statement of the principal, if not the only, reason of the rule. No other reason is found in the books, except the suggestion before referred to, that curtesy is refused where there was no actual seisin, because the husband might, by diligence, have obtained such seisin. But this idea, as we have seen, is not universally admitted.
Our next inquiry is, do these reasons, or either of them, exist in Ohio?
That livery of seisin has never been essential, in Ohio, to the creation of a freehold estate, nor an entry necessary to perfect the title of an heir or devisee, is well known to every lawyer. The most common instrument of conveyance is a deed of bargain and sale, which, without the aid of a statute of uses, transfers both the legal and equitable estate. Nay, further, a mere deed of quitclaim, or release, is sufficient, even where the releasee has no prior interest in the land. But our departure from the English law does not stop here; for an adverse possession does not prevent the transfer of title, either by deed, descent, or devise. Whatever title is held by the grantor, ancestor, or testator, may be thus transferred, notwithstanding the lands are adversely held by another. Holt v. Hemphill, 3 Ohio, 232; Helfenstine v. Garrard, 7 Ohio (pt. I), 272; Hall v. Ashby, 9 Ohio, 96. It might seem, from what was said in Holt v. Hemphill, that an adverse possession would be fatal to a deed; but that such possession in no wise affects it was expressly decided in Hall v. Ashby.
As, then, a freehold estate is created in Ohio without entry, it is manifest that the principal, if not the only reason, of the rule requiring actual seisin to give curtesy does not exist in this State.
But allowing that the minor reason before stated did exist in England, does it exist here? Ought a husband to be denied curtesy in Ohio upon the ground that he might have entered upon the land during coverture, and that if he did not, he was guilty of a fault that deservedly bars his right? There may have been much reason for saying so in England, when the rule requiring seisin was established; for, by the failure of the husband to enter, the wife and her issue might lose the estate, which it was plainly his duty to prevent, if possible. But in Ohio her title is as perfect before as after entry; and, in general, it would be nothing less than absurd to make a man's right depend upon whether he had gone for a moment upon the land and "broken a twig," or "turned a sod," or "read a deed." There is, however, one case, and perhaps but one, in which, if curtesy exists, the heirs of the wife might be prejudiced by a failure of the husband to obtain possession, namely, when by such failure the bar of the statute of limitations becomes perfect against them. But this would probably occur so rarely as to furnish but a slight foundation for the rule we are considering. Nor is it the only case in which a remainderman, or reversioner, may be powerless to preserve his estate. If A, the owner in fee of lands in the adverse possession of B, devise or convey them to C for life, with remainder to D, it is manifest that, as the statute of limitations began to run against A, and therefore continues to run against C and D, the latter may lose his estate through the neglect or failure of C to obtain possession. So, when the statute begins to run against a feme sole, and she afterward marry, she may lose her land by the neglect or inability of her husband to recover it.
These possible cases of hardship it is the province of legislation to guard against, and not of the courts. Were we to say that there shall be no curtesy where the possession was held adversely during the coverture, because to give it might by possibility result in the loss of the estate to the heir, it is very probable that, in guarding against hardships on the one side, we would open the door to quite as much, or more, hardship on the other. For it is very far from being true that the failure to obtain possession during the coverture, is always attributable to the husband's neglect. He may have freely spent his time, labor, and money to recover the land, and yet, without any fault of his, be unable to succeed in the lifetime of the wife. Decide as we may, doubtless there will be room for cases of hardship to arise; but, as was truly said by Duncan, J., in Stoolfoos v. Jenkins, 8 S. & R. 173: "Courts cannot usurp legislative functions, or new-model the law according to their own ideas of natural justice, or redress hardships in each particular instance." And it is never to be forgotten that all wise laws are framed with a regard to what is likely to occur, rather than to that which is only possible.