Smith v. Colvin , 17 Barb. 157 ( 1853 )

By the Court, Hubbard, J.

The precise question to be de7 termined is, whether the plaintiff at the time of the trial had any legal estate in the premises, sufficient to sustain ejectment. The defendant’s first objection is founded upon the statute for the more effectual protection of the rights of married women. (Sess. Laws, 1848, p. 307, § 2. Laws of 1849, p. 528, § 3.)

It cannot be disputed that in 1845, at the time the premises descended to the plaintiff’s wife, Lucy, (whose maiden name was Fillmore,) the plaintiff acquired a freehold estate, jure uxoris. (2 Kent’s Com. 130, 3d ed.) A husband’s estate in the lands of his wife, held in her own right, is denominated a freehold, because of its certain continuance during coverture, and during his life, after her decease, provided he is tenant by the curtesy. As a necessary incident, the husband becomes entitled to the possession, and to the rents and profits, commensurate with his estate, and if ousted may recover the same, in his own name. These marital rights were well settled by the common law, but the defendant’s counsel contends that the provisions of the statutes of 1848 and 1849, referred to, abrogated the husband’s estate, restoring, so to speak, to the wife the fee absolute, with full control and power of alienation, irrespective of the husband. It appears that in this case the wife did act upon this view of the law, by leasing and subsequently conveying the premises to the defendant. But we are clearly of the opinion, that neither the statute nor the conveyance of the wife, affected, in the least the estate of the plaintiff, or his right to prosecute this action. That estate was acquired prior to the enactment of the law: it became vested under the marriage contract, and it is not within legislative authority to divest it. Besides, the legislature have not undertaken any interference. , There is nothing in the letter or spirit of the act, by which any intention can be discovered to interfere, with marital rights acquired prior to its passage. And it is a familiar rule of statutory construction, that unless the clear letter of the law requires it, statutes are to be construed as operating prospectively and not retrospectively. Such is the presumed intent of the legislature, and especially so, when by retroaction vested rights are to be affected. (Smith’s Com. 679.) In Dash v. Van Kleeck, (7 John. 477,) Chief Justice Kent, at page 485, says, “ the very essence of a new law is a rule for future cases.” (Snyder v. Snyder, 3 Barb. S. C. Rep. 621. Butler v. Palmer, 1 Hill. 334.) We think, therefore, that the act of 1848 was not intended, and cannot be construed, to affect in any respect the marital rights of the husband in the property of his wife, vested before its passage.

It follows that the conveyance of the plaintiff’s wife to the defendant conveyed no estate affecting the plaintiff’s'rights. The wife had no present estate which she could legally convey; the deed is therefore wholly inoperative; a nullity as respects the plaintiff.

The second objection to the recovery is, that the plaintiff’s legal estate became divested by the execution sale, and the expiration of the time of redemption, before the trial. This ground is untenable, because the sale had not been consummated by sheriff’s conveyance. Until conveyance, the title of the purchaser is inchoate ; by the simple act of purchase he acquires no legal estate in the land, but a right to an estate, which may be perfected by conveyance; the legal estate remains in the debtor, who prior to the sheriff’s deed, is entitled to the possession and to the rents and profits. This is apparent from § 64, 2 B. §. p. 470, 3ded. If no redemption is made, the sheriff is required to complete the sale by conveyance, “ which conveyance shall be valid and effectual to convey all the right, title and interest which was sold by such officer.” (4 Kent’s Com. 431, 3d ed.) All redemptions must be within fifteen months of the time of sale, for the officer is then to execute a deed to the person entitled, and the title so acquired becomes absolute in law. The deed when executed will be good by relation and cover the intervening period from the sale, . The title does not pass by filing the sheriff’s certificate, which only operates as a lien by way of action, to protect the purchaser against intervening claims, except the right of redemption. Nor does the estate of the debtor become vested in the purchaser by mere lapse of the time of redemption, but only, as we think, by the sheriff’s conveyance under the statute. (Vaughn v. Ely, 4 Barb. 159.) This mode of transferring title to real estate, is in derogation of law, which requires the owner’s consent, and the statute should therefore be construed strictly, or in other words, title should not be regarded as divested or transferred by the sale alone, unless such is the plain import of the statute.

[Onondaga General Term, November 3, 1853.

Gridley, W. F. Allen and Hubbard, Justices.]

Before conveyance, the purchaser could not maintain ejectment to obtain possession ; and pari rations, he cannot defend a possession obtained against the consent of the debtor.

From these views it follows that the plaintiff, at the time of the trial, had. both the legal estate and the right of possession. The judgment must therefore be affirmed.