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 .
As in the case of dower, the marriage must be a legal one,76a and if it is absolutely null and void, as when one of the parties is an idiot, the estate does not arise.77 If, however, the marriage is voidable merely, and it is not avoided during the life of the wife, the husband is entitled to curtesy.78
At common law, as in the case of dower, seisin in the husband was necessary, so, in the case of curtesy, seisin in the wife was necessary, and this seisin was required to be seisin in deed, actual seisin, seisin in law not being sufficient, as it was in the case of dower.79 The requirement of actual seisin never applied, however, when the circumstances were such that it was impossible to obtain seisin,80 or when it was prevented by force.81 In this country, the requirement of actual seisin has been more usually repudiated, what may be regarded as seisin in law being considered sufficient.82
Occasionally the courts have taken the view that the husband is entitled to curtesy even though the wife
76a. 2 Blackst. Comm. 127.
77. Turner v. Meyers, 1 Hagg. Consist. 414.
78. 2 Burn, Ecc. Law, 501; In re Murray Canal, 6 Ont. 685; 1 Cruise, Dig. tit. 5, ch. 1, Sec. 5; Ren-nington v. Cole, Noy, 29.
79. Co. Litt. 29a; 2 Blackst. Comm. 127; 4 Kent, Comm. 29. 37; Stoddard v. Gibbs, 1 Sumn. 263, Fed. Cas. No. 13,468.
80. Co. Litt. 29a; Eager v. Furnivall, 17 Ch. Div. 115; De Grey v. Richardson, 3 Atk. 469; Chew v. Commissioners of Southward 5 Rawle (Pa.) 160.
81. Litt. Sec. 419, Mercer v. Selden, 1 How. (U. S.) 37, 11 L. Ed. 491; Barr v. Galloway, 1 McLean, 476, Fed. Cas. No. 1,037.
82. See Davis v. Mason, 1 Peters (U. S.) 503, 7 L. Ed. 679: Kline v. Beebe, 6 Conn. 494; Wass v. Buckman. 38 Me. 356; Redus v. Hayden, 43 Miss. 614; Stephens v. Hume, 25 Mo. 249; Jackson v. Sellick, 8 Johns. (N. Y.) 202, Stoolfoos v. Jenkins, 8 Serg. & R. (Pa.) 175; Buchanan v. Duncan, 40 Pa. 82.
As before stated, a conveyance under the Statute of Uses is regarded as conferring the actual seisin upon the grantee, and consequently an actual entry on the land by him is unnecessary to support curtesy,85 and any conveyance on a pecuniary consideration or in consideration of blood or marriage might be regarded as taking effect under this statute, for this as for other purposes,86 in so far as the statute is in force in that jurisdiction. As regards land which came to the wife by devise or descent, actual seisin has been regarded as necessary in one or two states,87 but elsewhere a contrary view has been asserted.88
83. Borland's Lessee v. Marshall, 2 Ohio St. 308; Bush v. Bradley, 4 Day (Conn.) 298; Mer-ritt's Lessee v. Home, 5 Ohio St. 307, 67 Am. Dec. 298. See Chew v. Commissioners of Southwark, 5 Rawle (Pa.) 160; Stoolfoos v. Jen-kis, 8 Serg. & R. (Pa.) 175; Calvert v. Murphy, 73 W. Va. 731, 81 S. E. 403.
84. Mercer's Lessee v. Selden, 1 How. (U. S.) 37, 11 L. Ed. 491; Parsons v. Justice, 163 Ky. 737. 174 S. W. 725; Den d. Hooper v. Demarest, 21 N. J. L. 525; Baker v. Osgood, 49 Hun, (N. Y.) 416, 3 N. Y. Supp. 570; Carpenter v. Garrett, 75 Va. 134; See Wells Thompson, 13 Ala. 793, 48 Am. Dec. 76; McDaniel v. Grace, 15 Ark. 468.
A recovery in ejectment by the husband and wife has been reregarded as restoring the seisin to the wife. Ellsworth v. Cook, 8 Paige (N. Y.) 643.
85. Barr v. Gallcway, 1 McLean, 476, Fed. Cas. No. 1,037; Jackson v. Johnson, 5 Cow. (X. Y.) 74, 15 Am. Dec. 433; Adair v. Lott, 3 Hill (N. Y.) 182; Carpenter v. Garrett, 75 Va. 129. 86. Post Sec. 432.
87. Adair v. Lott, 3 Hill (N. Y.) 182; Jackscn. v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Carr v. Anderson, 6 App. Div. (N. Y.) 6; Fulton v. Johnson, 24 W. Va. 95; Carpenter v. Garrett, 75 Va. 134.
88. Doe d. Childers v. Bum-garner, 53 N. C. 297; Stephens v. Hume. 25 Mo. 349.
A decree confirming a sale of unoccupied land has been re-garded as giving the seisin to the seisin for curtesy was thai the husband had it in his own power to obtain for himself and his wife the actual seisin, and that it was his fault if he failed so to do.93
The requirement of actual seisin has, in this country, been regarded as inapplicable to wild or waste land.89
In some cases,90 the courts have repudiated the requirement of seisin in deed on the theory that this requirement resulted from another requirement, discussed in the next following section, that, in order that curtesy exist, the property must be inheritable by the issue of the marriage, which quality of inherita-bility could, at common law, exist only when the ancestor (in this case, the wife) was actually seised,91 and that this latter requirement of seisin in the ancestor in order to give title by descent having been discarded, the requirement, derived therefrom, of actual seisin for the purpose of curtesy, no longer obtains. But while some of the common-law authorities do refer the requirement of actual seisin to give curtesy to the necessity of such seisin for the purpose of descent,92 it appears that they are in error in so doing, and that the real basis of the requirement of such purchaser for this purpose. Seim v. O'Grady, 42 W. Va. 77. 24 S. E. 94.
89. Davis v. Mason, 1 Peters (U. S.) 503, 7 L. Ed. 239; Barr v Galloway, 1 McLean 476, Fed. Cas. No. 1,037; Wells v. Thompson, 13 Ala. 493, 48 Am. Dec. 76: McDaniel v. Grace 15 Ark. 468; Mettler v. Miller, 129 111. 630, 22 N. E. 529; Jackson v. Sellick, 8 Johns. (N. Y.) 262; Ferguson v. Tweedy, 43 N. Y. 543; Guion v. Anderson, 8 Humph. (Tenn.) 298.
In Kentucky, on the contrary, it was held that there was no curtesy in wild lands, though in the possession of nobody. Neely v. Butler, 10 B. Mon. (Ky.) 48; Conner v. Downer, 4 Bush (Ky.)
631. These decisions were to some extent based upon the uncertain character of the title to public lands in that state, rendering it the duty of the owner promptly to take possession.
90. See Borland's Lessee v. Marshall, 2 Ohio St. 308; Davis v. Mason, 1 Pet. (U. S.) 503, 7 L. Ed. 679; Mettler v. Miller, 129 111. 630, 21 N. E. 799; Vanars-dall v. Fauntleroy's Heirs, 7 B. Mon. (Ky.) 401; Reaume v. Chambers, 22 Mo. 36; Chew v. Commissioners of Southwark 5 Rawle (Pa.) 160. 91. Post Sec. 487.
92. See Co. Litt. 40a; Paine's Case, 8 Co. 86a; 2 Blackst. Comm. 128.
Even in England, as well as in this country, the wife has been regarded as having actual seisin for this purpose, when the land is in possession of a lessee for years holding under her,94 and also, in the case of a tenant in common or coparcener, when her cotenant has acquired the actual seisin.95
There is a sufficient equivalent of legal seisin in the case of an equitable estate, if the wife is in receipt of the rents and profits, or her trustee is in actual possession.96
93. Such is the conclusion arrived at by Mr. Joshua Williams on a full investigation of the matter. See Williams, Real Prop. Appendix C. He cites in support of his view Co. Litt. 31a. 2 Blackst. Comm. 131, Perkins. Sec. 470. So it is said by Jessel, M. R., in Eager v. Furnivall, 17 Ch. D. at p. 119, "If (the property) descended to the wife, for instance, and the husband did not enter in her right before her death, the husband did not. get the curtesy; but though that was settled law. there was a reason for the law-it was considered to be the husband's own fault for not entering.
94. De Grey v. Richardson, 3 Atk. 469; Todd v. Oviatt, 58 Conn. 174, 7 L R. A. 693, 20 Atl. 440: Day v. Cochran. 24 Miss. 261; Robertson v. Stevens, 36 N. C. 247; Lowry's Lessee v. Steele, 4 Ohio, 170; Buchanan v. Duncan, 40 Pa. 82. And it was so held when the lessee held under a lease made by the wife's guardian this making her in effect tenant under the wife. Powell v. Gossom, 7 B. Mon. (Ky.) 401.
95. Sterling v. Penlington, 7 Vin. Abr. 150 pl. 11; Rhodes v. Robie, 9 App. D. C. 405; Carr v. Givens. 9 Bush (Ky.) 679, 15 Am. Rep. 747; Wass v. Buchanan, 3S Me. 360; Bragg v. Wiseman, 55 W. Va. 330, 47 S. E. 90.
96. 4 Kent, Comm. 31; Morgan v. Morgan, 5 Madd. 408; Powell v. Gossom, 18 B. Mon. (Ky.) 179; Yankey v. Sweeney, 85 Ky. 55, 2 S. W. 559; Dugan v. Gittings. 3 Gill. (Md.) 138, 43 Am. Dec. 306; Cushing v. Blake, 30 N. J. Eq. 689; Chew v. Commissioners of Southwark, 5 Rawle (Pa.) 160; Withers v. Jenkins, 14 S. C. 597; Compare Stuart v. Stuart, 18 W. Va. 675.
It has been decided that one who held merely under a contract of sale did not have such seisin as to give curtesy to her surviving husband. Grandjean v. Beyl, 78