Gale & Wife's Lessee v. Houston , 1 Del. Cas. 375 ( 1795 )

[Per] Curiam.

We are of opinion that the plaintiff is not en-

titled to recover the term. There was no actual seisin of the land during the life of the wife, and of consequence the plaintiff did not become tenant by the curtesy upon her death. His right therefore to the land is determined, and as that appears upon the record, possession of the land cannot be recovered. The cases cited from Coke on Littleton are cases in which there could not be more than a seisin in law; that could not be said in this case. There was a present right to actual possession, and it might have been obtained though the lessor was unlucky enough to be kept out by the adverse possession of the defendant. The plaintiff, however, is entitled to judgment for damages and costs. This right survived upon the death of the wife and is distinct from the right to the land.

The judgment will be entered for the plaintiff generally, but the Court will award no execution for the term. But the plaintiff will be entitled to execution for damages and costs.