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 previously stated,66 the husband has, at common law, by right of marriage, an estate of freehold in his wife's land, to endure till his or her death, and he is said to be seised jointly with her. Such is the case until issue are born to the marriage who might possibly inherit the land. After the birth of such issue, the husband has an estate, known as the estate by the curtesy initiate, which will endure until his death, and which, in case he survives his wife, becomes an estate by the curtesy consummate, so called.67
64. Schmidt v. Raymond, 143 Wis. 271, 134 N. W. 362; Bennett v. Clamp, 54 Vt. 36; In re Bidwood's Estate, 86 Vt. 295, 85 Atl. 6.
64a. Miller v. Hanna, 89 Neb. 224, A. & E. Ann. Cas. 1912C. 573. 131 N. W. 226; Johnson v. Minnesota Loan & T. Co.. 75 Minn. 4, 74 Am. St. Rep. 438, 77 N. W. 421. In Arrowsmith v. Arrow-smith, 8 Hun (N. Y.) 606, it was held that, since the Married Woman's Property Act, the husband's curtesy is postponed to payment of the wife's debt-.
65. Stewart' v. Ross, 50 Miss. 776.
66. Ante Sec. 205.
67. Co. Litt. 30a; 2 Blackst. Comm. 128; 4 Kent, Comm. 29; Jones v. Davies 7 Hurl. & N 507; Stewart v. Ross, 50 Miss. 776; Foster v. Marshall, 22 N. H. 491; Lancaster County Bank v. Stauffer, 1C Fa. St. 398.
As to the mode of valuation of tenancy by curtesy initiate when the land is sold free of curtesy, by consent or decree, or by statutory authority, see Hoffman v. Rice, 38 Md. 284 ; Houghton v. Hapgood, 13 Pick, (Mass.) 154; Cronkright v. Haulenbeck, 25 N J. Eq. 513; Benedict v. Seymour, 11 How. Prac. (N. Y.) 176.
The estate by the curtesy initiate is a freehold estate,68 which the husband has power to convey,69 and which is subject to his debts and to sale under execution against him.70 It thus differs fundamentally from dower inchoate, which is a mere possibility of an estate in the future.71 And consequently, while dower inchoate may be diminished or extinguished by legislative act,72 the legislature has no such power as to curtesy initiate.73
There has been some difference of opinion as to the character of the wife's rights during the period of curtesy initiate, especially in connection with questions of adverse possession in a third person for the statutory period as against her and her heirs. In Massachusetts, and perhaps elsewhere, it has been considered that, during that period, the wife and the husband are jointly seised, so that a disseisin by other persons will operate against the wife, as well as against the husband.74 But, more usually, the wife has been considered as having, during the curtesy initiate, no seisin, but merely a reversion expectant on the termination of the life estate by curtesy in the husband,75 the husband being regarded as seised, after the birth of issue, in his own right and not jointly seised with the wife, as he was before the birth of issue. Under this latter view the wife has no right of action, during the period of curtesy initiate, to recover the land from a wrongdoer, and consequently, as above indicated, the statute of limitations does not run against her in favor of one in adverse possession of the land.76 On the other hand, the husband has, by reason of his curtesy initiate, full power to sue alone to recover possession of the land,77 or damages on account of a trespass on the land,78 so that the statute of limitations will run against him.
68. Co. Litt. 30a; Stewart v. Ross, 50 Miss. 776; Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 137; Lancaster County Bank v. Stauffer, 10 Pa. St. 398; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740.
69. Co. Litt. 30a; Boykin v. Rain, 28 Ala. 332, 65 Am. Dec 349; Shortall v. Hinckley, 31 111. 219; Jackson v. Jackson, 144 111. 274, 36 Am. St. Rep. 427; Stewart v. Ross 50 Miss. 776; Flagg v. Bean, 25 N. H. 49; Long v. Gracber, 64 N. C. 31; Kolten-brock v. Cracroft, 36 Ohio St. 584; Briggs v. Titus, 13 R. I. 136.
Occasionally the statute prohibits the husband from disposing of his interest during coverture by his sole deed. Marshall v. Anderson, 78 Mo. 85; Jones v. Carter, 73 N C. 148; Roberts v. Sliffe; 41 Ohic St. 225.
70. Lang v. Hitchcock, 99 111. 550; Roberts v. Whiting, 16 Mass. 186; Day v. Cochran, 24 Miss. 261. 275; Robie v. Chapman, 59 N. H. 41; Van Duzer v. Van Duz-er, 6 Paige (N. Y.) 366, 31 Am. Dec. 257; Canby's Lessee v. Porter, 12 Ohio 79; Lancaster County Bank v. Stauffer, 10 Pa. St. 398; Mattocks v. Stearns, 9 Vt. 326.
In some states the liability of curtesy initiate to sale on execution for the husband's debts has been extinguished by statute, without affecting its existence for other purposes. Anderson v. Tydings, 8 Md. 427, 63 Am. Dec. 708; Curry v. Bott, 53 Pa. 400; Young v. Lea. 3 Sneed (Tenn.) 249. And such effect has been given to a statute exempting the wife's property from liability for the husband's debts. Hitz v. National Metropolitan Lank, 111 U. S. 722, 28 L Ed. 577; Greenwich Nat. Bank v. Hall, 11 R. I. 124; Briggs v. Titus, 13 R. I. 136.
71. Ante Sec. 230.
72. Ante Sec. 230, note 30.
73. Zeust v. Staffan, 16 App. D. C. 141; Jackson v. Jackson, 144 111. 27 4, 36 Am. St. Rep. 427; Clay v. Mayr, 144 Mo. 376, 4C S W. 157; Wyatt v. Smith, 25 W. Va 813; See Hitz v. National Metropolitan Bank, 111 U. S. 722, 23 L. Ed. 577.
74. Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 161; Kitt-redge v. Proprietors of Locks & Canals on Merrimack River, 17 Pick. (Mass ) 246; Guion v. Anderson, 8 Humph. (Tenn.) 2.98, 325 (semble).
75. Foster v. Marshall, 22 N. H. 491; Shortall v. Hinckley, 31 111. 219; Dawson v. Edwards, 189 111. 60; Dyer v. Wittier, 89 Mo. 81, 58 Am. Rep. 85, 14 S. W. 318; Stewart v. Ross, 50 Miss. 776. And see Jackson v. Johnson, 5 Cow (N. Y.) 74, 15 Am. Dec. 443; Den d. Fagan v. Walker, 27 N. C. 634. The opinion in Foster v. Marshall, supra, appears to the present writer to be unanswerable. As there shown, the common-law writers speak of the estate by curtesy initiate vesting in the husband, on the birth of issue, ' in his own right," as distinguished from his estate in the wife's freehold property of inheritance be-fore the birth of issue, which give the husband and wife seisin jointly "in right of the wife." See Co. Litt. 30a, 67a, 124b, 351a. See, also, authorities cited ante, this section, note 67. This distinction seems not to be observed in Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 161, and Guion v. Anderson, 8 Humph. (Tenn.) 298, 225, which discuss the character of the husband's est?te, without reference to the effect of the birth of issue, though it appears from the statements of facts that there were issue born. In Kittredge v. Proprietors of Locks & Canals on Merrimack River 17 Pick. (Mass.) 246, it is merely stated that it had been decided in Melvin v. Proprietors of Locks & Canals on Merrimack River that, where there is tenancy by the curtesy initiate, a disseisin affects the right of the wife as well as that of the husband. The word "curtesy" does not, however, appear in the opinion or arguments in the earlier case.