This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At common law in those things in which the wife has a freehold estate, the husband has, by right of marriage, an estate carved out of his wife's estate, which may endure until his or her death, and which is therefore itself a freehold estate.1 He is entitled to all the rents and profits, free from any claim by the wife.2 He can alien his estate without the concurrence of his wife,3 and it is liable to execu1. Co. Litt. 351a; 1 Roper, Husb. & Wife, 3; 2 Kent, Comm. 130; Elliott v. Teal, 5 Sawy. 249, Fed. Cas. No. 4,396; Eaton v. Whitaker, 18 Conn. 222, 44 Am. Dec. 586; Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618; Babb v. Perley, 1 Me. 6; Payne v. Parker, 10 Me. 181, 25 Am. Dec. 221; Melvin v. Proprietors of Locks & Canals on Merrimac River, 16 Pick. (Mass.) 165.
He has such an estate, even in land assigned to her for dower in the estate of a previous husband, she having a freehold interest therein. Neil v. Johnson, 11 Ala. 615; Barber v. Root, 10 Mass. 260; Van Note v. Downey, 28 N.
J. L. 219; Bachman v. Chrisman. 23 Pa. St. 162.
2. Williams, Real Prop. 307; Nunn's Adm'r v. Givhan's Adm'r,
45 Ala. 370; Royston v. Royston. 21 Ga. 161; Clapp v. Inhabitants of Stoughton, 10 Pick. Mass.) 463; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236.
3. Co. Litt. 325b, Butler's note, 280; Robertson v. Norris, 11 Q. B. 916; Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349; Jones v. Freed, 42 Ark. 357; Eaton v. Whitaker, 18 Conn. 222, 44 Am. Dec. 586; Butterfield v. Beall, 3 Ind. 203; Track v. Patterson, 29 Me. 499.
Sec. 205] Estates Arising From Marriage 727 tion for his debts.4
The husband is not, however, considered as having the sole seisin, but this is in him and his wife jointly, in right of his wife, and accordingly they must sue jointly for any injury to the inheritance.5 But since the husband alone is interested in the rents and profits, he can sue alone for them, or for any injury to them.6
This estate of the husband continues till the termination of coverture by his death or that of his wife,7 or by divorce,8 or until there is issue of the marriage born alive, when this estate in right of the wife gives place to an estate of curtesy initiate in the husband's own right.9 If the wife survives the husband, her estate of inheritance remains to her and her heirs, after his death, unaffected by any alienation made by him, or debts which he may have incurred, since he has no power, by his acts, to affect more than his own interest.10
4. 2 Kent, Comm. 131; Cheek v. Waldrum, 25 Ala. 152; Beale v. Knowles, 45 Me. 479; Litchfield v. Cudworth, 15 Pick. (Mass.) 23; Nicholls v. O'Neill, 10 N. J. Eq. 90.
5. 1 Wm. Saund. 253, note; Polyblank v. Hawkins, I Doug. 329; Nicholls v. O'Neill, 10 N. J. Eq. 88; Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 161; Wy-att v. Simpson, 8 W. Va. 394.
6. 2 Kent, Comm. 131; Clapp v. Inhabitants of Stoughton. 10 Pick. (Mass.) 463; Decker v. Livingston, 15 Johns. (N. Y.) 479; Fairchild v. Chastelleux, 1 Pa. St. 176; Mattocks v. Stearns, 9 Vt. 326; Dold's Trustee v. Geiger's Adm'r, 2 Gratt. (Va.) 98.
7. 2 Kent, Comm. 130; Robertson v. Norris, 11 Q. B. 916; Payne v. Parker, 10 Me. 181, 25 Am. Dec. 221; Evans v. Kingsberry, 2 Rand (Va.) 120, 14 Am. Dec. 779.
8. Oldham v. Henderson, 5 Dana (Ky.) 254; Wright v. Wright's Lessee, 2 Md. 429, 56 Am. Dec. 723; Barber v. Root, 10 Mass. 260; Mattocks v. Stearns, 9 Vt. 326.
9. Roper, Husband & Wife, 3; 2 Pollock & Maitland, Hist. Eng. Law, 405; 2 Kent, Comm. 130; Lancaster County Bank v. Stauf-fer, 10 Pa. St. 398. See post Sec. 244.
10. 1 Roper, Husband & Wife, 56; Williams, Real Prop. 308; Rogers v. Brooks, 30 Ark. 612; Melius v. Snowman, 21 Me. 201; Bruce v. Wood, 1 Mete. (Mass.) 542; Evans v. Kingsberry, 2 Rand. (Va.) 120, 14 Am. Dec. 779; Stroebe v. Fehl, 22 Wis. 337.
- In chattels real of wife. The wife's chattels real become, at common law, the property of the husband for certain purposes. He may dispose of them during his lifetime without her consent, they are liable for his debts, and the rents and profits belong to him, and after her death he takes them absolutely. If she survives him, and he has not disposed of them during his life, they belong to her.11 He cannot dispose of them by will, if she survives him, as he can personal chattels.12