On the whole, the conclusion to which we have arrived is, that neither of the reasons given for making actual seisin indispensable to curtesy, affords any sufficient foundation for the rule in Ohio.
It remains to be considered whether the reason of the rule having ceased, or rather never having existed in this State, the rule itself exists here. Tenancy by the curtesy has always been known to our law and is recognized by our statutes. We cannot deny its existence; but may we not deny the necessity of a requisite, that properly enough formed a place in the common law, but has no reason to support it in our jurisprudence? We are materially aided in this inquiry by the American decisions upon the subject of curtesy. These decisions may be reduced into three classes:
1. Those in which there being no adverse possession, the husband and wife were held to be constructively seised in deed, and such constructive seisin deemed sufficient.
2. Those in which there was an adverse possession; but a recovery in ejectment, on the demise of the husband and wife or the husband alone, took place during the coverture; and in which there was held to be curtesy, although no actual possession followed the recovery.
3. Those in which an adverse possession was decided to be no bar to curtesy.
Of the first class, Jackson v. Sellick, 8 Johns, 208, and Davis v. Mason, I Peters, 506, may properly, perhaps, be called the leading cases. Many others might be cited, for the general current of American authority certainly admits curtesy in this class of cases.
Of the second class, Ellsworth v. Cook, 8 Paige, 643, is the leading case.
To the third class belongs Bush v. Bradley, 4 Day, 298, approved in Chew v. Comm'rs of Southwark, 2 Rawle, 160, etc.
Now, a careful scrutiny of these cases will show that, in nearly all of them, the decisions were arrived at by an application of the maxim
"cessante ratione, cessat ipsa lex." It was so expressly declared in Davis v. Mason. That case respected lands in Kentucky. After giving, in the passage hereinbefore quoted, the reason of the rule requiring seisin, the judge, who delivered the opinion of the court, went on to say: "But in Kentucky, we understand, the livery of seisin is unheard of. Freeholds are acquired by patent, or by deed, or by descent, without any further ceremonies; and in tracing pedigree, the proof of entry, as successive descents are cast, is never considered as necessary to a recovery, or in any mode affecting the course of descent. If a right of entry therefore exists, it ought by analogy to be sufficient to sustain the tenure acquired by the husband, where no adverse possession exists; as it is laid down in the books relative to a seisin in law, 'he has the thing, if he has a right to have it. 'Such was not the ancient law; but the reason of it has ceased. It has been shown, that in the most remote periods exceptions had been introduced on the same ground; and in the most modern, the rule has been relaxed upon the same consideration. We ought not to be behind the British courts in the liberality of our views on the subject of this tenure."
So in Jackson v. Sellick, the court said: "We must take the rule (requiring seisin) with such a construction as the peculiar state of new lands in this country require."
Both these cases seem to proceed on the ground that the wife, though not actually, was yet constructively seised in deed. Hence the allusion, in each case, to the fact that there was no adverse possession to rebut the presumption. The question whether an adverse possession would be fatal to the claim to curtesy was not presented. The cases in effect decide, not that seizin in deed is indispensable, but that, if there must be seisin, a constructive seisin is sufficient. But in Bush v. Bradley, the question was directly raised. The premises, during the whole period of the coverture, were adversely held by a third person. Yet the husband was adjudged to be tenant by the curtesy. The real estate law of Connecticut was, in all respects, material to the present inquiry, the same as that of Ohio; and the court held that, as the reason of the rule requiring seisin did not exist, seisin was unnecessary, and that the symmetry of the law required this decision. To the same effect is the following language of the court in Stoolfoss v. Jenkins, 8 S. & R. 175: "The actual seisin of the husband during coverture is necessary to entitle him, as tenant by the curtesy, by the common law; though such actual seizin by the husband is not necessary by our law, if there be a potential seisin, or right of seisin. This has been decided to be sufficient in this State." This ruling, as well as the case of Bush v. Bradley, was approved in the case in 5 Rawle, 160, before cited, the court holding that it was sufficient to entitle the husband to curtesy that the wife owned the land and had a right "to demand and recover the immediate possession thereof."
In the light of these decisions, and the considerations upon which they rest, we can hardly err in holding that the reason, or reasons of the rule requiring seisin in deed, having no existence in Ohio, the rule itself does not exist. And, certainly, the symmetry of our law demands this. It would be strange indeed, and only lead to confusion and perplexity, if, while every other tenancy may be created in this State without entry, or regard to the fact of adverse possession, a tenancy by the curtesy could not. Nor does a rule strongly commend itself to the good sense of men that makes the existence of the estate depend upon an almost, or quite, imaginary distinction between seisin in law and constructive seisin in deed. The constructive seisin relied on in Jackson v. Sellick, Davis v. Mason, and Ellsworth v. Cook, was in substance nothing but a seisin in law. It is a mere fiction to say that a man is actually possessed of that which is in no one's possession, and it is plainly untrue to say so when the thing is in the possession of another. The reasoning of the courts in all these cases, if carried to its legitimate result, makes seisin in deed, either actual or constructive, wholly unnecessary; and this result is not in conflict with the principles of the common law. For even at common law, a seisin in law is sufficient to give curtesy in all inheritances created without entry. 3 Bac. Abr. 12; Jackson v. Johnson, 5 Cow. 98; Ellsworth v. Cook, 8 Paige, 643. It is therefore a mere application of a common-law principle to say that a seisin in law is sufficient in Ohio, where in no case is an entry necessary to create an inheritance. In the case before us, Mrs. Borland was seised in law, for "seisin in law is a right to lands and tenements, though the owner is by wrong disseised of them." 6 Jacob's Law Dic. 41. Her husband, there being issue born, became tenant by the curtesy, and as he was yet in life when the ejectment was brought by her heirs, the common pleas did right to nonsuit them.