Be it so, that by these authorities, these positions are sustained; still all the authorities concur, that until the death of the wife, he is only tenant by the curtesy initiate, and not consummate. The death of the wife is one of the four essential requisites to constitute a tenancy by the curtesy.
Now, the wife, Mary Wheeler, is still living, and the foundation of the husband's estate is removed, by the dissolution of the marriage. The coverture is dissolved by the wrong act of the husband. By the authority of adjudged cases, as well as for the soundest reasons, his estate could continue only during the coverture. 8 Conn. Rep. 545. I am, therefore, satisfied, that the right of the wife, which was suspended during the marriage, is restored by the divorce; and of course, the title to the land is now vested in her. * * *
Judgment for defendant.1
(d.) Wife's conveyance.
Vann, J., in
149 New York, 71 (S5). - 1896.
It is difficult to see how McCarty's signature to the mortgage added anything to its effect, as, since the acts allowing married women to sell and devise their lands, a husband's right as tenant by the curtesy initiate, as to lands acquired since the passage of those acts, consists simply of a status,which is never a vested right and is not separately alienable during coverture, but may be modified or annulled at any time before it becomes consummate by the death of the wife. Thurber v. Townsend, 22 N. Y. 517; Staples v. Brown, 95 Mass. 64; Williams N.Baker, 71 Pa. St. 476; 1 Kerr on Real Property, §§ 780, 831; Gerard's Titles to Real Estate, 4th ed. 79, 159. While merely initiate it is not an estate, but a simple possibility or expectancy like that of an heir apparent. Either may be destroyed at will by the owner of the fee. As it is not coupled with an interest in the property, it cannot be made the subject of a mortgage or transfer. "It is common learning in the law that a man cannot grant or charge that which he hath not." Perkins, tit. Grant, § 65. Like "the next cast of a fisherman's net," it involves a possibility but no actual or potential interest. 1 Thomas on Mortgages, § 136. While equity may enforce a contract expressly intended by the parties to apply to after-acquired property, that principle does not apply to a husband, who simply unites with his wife, the owner of the fee, in a deed or mortgage. We think, therefore, that Mr. McCarty was not disqualified as a witness because he was tenant by the curtesy.1
1 Contra, Gillespie v. Worford, 2 Coldwell (Tenn.), 632, (1865.)
13 Connecticut, 83. - 1839. [Reported herein at p. 626.]
(1.) Nature of Dower.
(a.) Dower inchoate.
103 New York, 153. - 1886.
Action against Margaret Shea to foreclose a mortgage executed in 1878 by Martin Shea, and Margaret, his wife, upon lands of the husband. Mrs. Shea had no interest in the lands, at that time, other than her inchoate right of dower. In 1880 the premises were sold under an execution upon a judgment recovered in 1874 against Martin Shea. The judgment had been duly docketed. Martin died in 1882, and shortly thereafter the purchaser conveyed the premises to his widow. The trial court and the General Term held the dower interest of the widow, subject to the mortgage. Defendant appeals.
1 Where the wife can convey lands subject to the curtesy, but not free from it the husband by joining in her deed would bar his curtesy. In some States curtesy is abolished, in some it is made analogous to dower, in some the hus-band takes an absolute interest in a portion of his wife's lands on her death. I Stim. Am. Stat. Law, Art. 330. - ED.
Andrews, J. - The joinder by a married woman with her husband in a deed or mortgage of his lands, does not operate as to her by way of passing an estate, but inures simply as a release to the grantee of the husband, of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release attends the title derived from the husband, and concludes her from afterward claiming dower in the premises as against the grantee or mortgagee, so long as there remains a subsisting title or interest, created by his conveyance. But it is the generally recognized doctrine that when the husband's deed is avoided, or ceases to operate, as when it is set aside at the instance of creditors, or is defeated by a sale on execution under a prior judgment, the wife is restored to her original situation, and may, after the death of her husband, recover dower as though she had never joined in the conveyance. Robinson v. Bates, 3 Metc. 40; Malloney v. Horan, 49 N. Y. 111 ; Kitzmiller v. Van Rensselaer, 10 Ohio St. 63; Littlefield v. Crocker, 30 Me. 192.
In short the law regards the act of the wife in joining in the deed or mortgage, not as an alienation of an estate, but as a renunciation of her inchoate right of dower in favor of the grantee or mortgagee of her husband, so far as respects the title or interest created by his conveyance. It follows, therefore, that her act in joining in the conveyance, becomes a nullity whenever the title or interest to which the renunciation is incident, is itself defeated. Scribner on Dower, chap. 12, § 49. The wife's deed or mortgage of her husband's lands cannot stand independently of the deed of her husband when not executed in aid thereof, nor can she by joining with her husband in a deed of lands to a stranger, in which she has a contingent right of dower, but in which the husband has no present interest, bar her contingent right. Marvin v. Smith, 46 N. Y. 571. These principles are, we think, decisive of this case. The plaintiff's mortgage has been defeated by the paramount title, derived under the execution sale. It was the husband's mortgage and not the mortgage of the wife, except for the limited and special purpose indicated. The lien of the mortgage, as a charge on the lands of the husband, has by the execution sale, been subverted and destroyed. Nor can the security be converted into a mortgage of the widow's dower, now consummate by the death of her husband. This would be a perversion of its original purpose. Her act in signing the mortgage became a nullity on the extinguishment of the lien on the husband's lands. If on the execution sale there had been a surplus applicable to the mortgage, it might very well be held that the widow could not be endowed therein, except after the mortgage had been satisfied.